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SP201700020 Staff Report 2018-07-05 (6)
To address the items per application instructions; n its pubile need or benefiii; This 4,06 acre is zoned Highway Commercial and provides service to the community. There is no changes proposed to the site plan. This business is located on property zoned for uses as exist and it does generates significant tax revenue that is anticipated in the County budget. This business provides employment to 9 - 10 people in its operation. o How the special use permit will not be a substantial detriment to adjacent lots; This property has been used for commercial purposes since before the ordinance was adopted and is designated as Highway Commercial zoning. Its current use as convenience store with gas sale and office meets current site development requirements. Specific measures were incorporated into the site design such as fencing, screening plantings, and buffers as required by the ordinance to site design standards. There is an existing Eft high board -on -board privacy fence, an undisturbed buffer along the South and West edges where trees were protected during development, and screening trees planted along the rear (eastern border). The planted buffer trees and the original protected trees have grown significantly since 2013. Adjacent lots — to the East is HC zoned property current use is vehicle storage, to the North is HC zoned property current use is convenience store with gas sales, to the West is RA zoned property current use is brewer operation, to the South is RA zoned property current use is residential. o How the character of the zoning district will not be changed by the proposal special use, and The character of this section of RT250 is substantially commercial although outside the growth area. The east abutting parcel is HC, with several other HC parcels to its east. The west abutting parcel is zoned RA currently a brewery operation with HC parcels on its wrest side, then industrial zoning properties more to the west. Directly across the road is HC zoning convenience store. The existing use on this parcel is convenience store/office will not change the character of the zoning district. a How the special use will be in harmony with the fallowing; The purpose and intent of the Zoning Ordinance, The intent of the ordinance is to provide measures such as setbacks and other regulations to dictate zoning buffers and screening requirements have all been met. The ordinance also dictates that under HC zoning it is necessary should any use not served by public water exceed 400 gallons per site acre per day to obtain a special use permit to allow an increase in the volume of water it exceeds by. In this case, this 4.05 acre site can use up to 400 x 4.06 = 1,624 gallons per day. When proposed in 2008, water studies done at that time to show it will operate within the limit of 1,624 GPD. Regardless, Zoning determined it would "likely exceed" and obtaining a special use permit was a condition of the site plan approval. For the record, the special use permit request provided water data showing the 1,624 gpd would not be exceeded but in order to enable a permit 1 single gallon per day was requested. SP200"0034 was approved in 2010 with conditions. w The lases permitted by right in the zoning district, The underlying uses of conveniencelretail/office uses are by right in this HC district. Over a period of years, it has been proven that the development uses only a fraction of the water allowed so this is to t request relief from a few of the conditions imposed, No change the water usage amount is requested. No change the site plan. The development remains in harmony with the HC zoning district. The regulations provided in Section 5 of the Zoning Ordinance as applicable, and All have been complied with. The public health, safety and general welfare. The development of this site included improvements to the public road RT 250 for a VDOT approved entrance that provides safety measures that do not exist at the entrances to other commercial properties on this stretch of RT 250. It is the only convenience store of the 8 in proximity that meets the parking requirements on -site rather than having vehicles park in the state right of way. Impacts on Public Facilities & Public Infrastructure There no impacts to the public facilities for the amendment to the SP conditions. Impacts on Environmental Features There are no impacts on environmental features. Please refer to the map provides which shows there are no stream buffers or critical slopes on this property. * Involuntary —The Albemarle County Land Use Law Handbook,: Pg 12-6, Section 12.610: states - "Unlike proffers that accompany a rezoning considered by the locality's governing body, special use permit conditions are not volunteered by the landowner_` Only conditions 1, 2, 3, and 7 were voluntary in this case. All others were imposed by the BOS to mitigate impact which was anticipated but has not happened. There is no impact if the water usage is less than the 1,624 GPn. The involuntary conditions are not reasonable but rather excessive and not proportional to any impact. ** The Albemarle County Land Use Law Handbook; Pg 12 8, Section 12 ... 620: state - "... such as a condition to a special use permit, it must be certain that these conditions of approval; (1) have a nexus that is related to the impact of the proposed development; and (2) are roughly proportional to the extent of the impaci". In this case, the Special Use is the granting of 1 gallon of water in excess of what can be used by -right, The only reason that 1 gallon of water was requested was NOT because Re-Store'N Station needed it to successfully operate so there was no choice but apply for the permit to complete the process for the site plan approval. l DETAILED DESCRIPTION; Conditions 1, 2, 3, 4, 7, and 8 remain unchanged. Request is to modify Condition 5 and Condition 0 to provide some relief from the restrictions as warranted. Since there is an approved site plan, Condition 9 should be updated. (See Attachment A -CONDITIONS of SP2009.00034 with requested changes incorporated dtd 9.18.17) CONDITION 1, 2,3 -- NO CHANGE REQUESTED DISCUSSION, These conditions require a meter to measure the water usage, restrict the water usage to 1 GALLON above the by -right amount for a total of 1,625 GPD, and require a flow restriction device so the water limit of 1,625 GPD can never be exceeded. The peak usage of 383GPD proves that the water allowed has not been used. It means that the one (1) gallon that was added by the special use permit has never been needed. With a flow restriction device, it is impossible to exceed the 1,625 GPD, CONDITION 4 -- NO CHANGE REQUESTED: DISCUSSION; This was not a voluntary condition. At this time, there is no request to modify as no change to the site plan is proposed, CONDITION 5 — REQUEST IS TO ALLOW 4 ADDITIONAL HOURS OF OPERATION & NOT RESTRICT THE PUMP STATION OPERATION; DISCUSSION: This was not a voluntary condition. Currently the store operates 16 hours per day. This request is to allow 4 additional hours for a total of 20 hours AND to NOT restrict the fuel pump operation so service to credit card customers is allowed when store is closed. As it relates to store hours, the store would not operate between 12:30am and 4:20am which is consistent with Condition 0, Allowing 4 additional hours will provide flexibility on weekends for customers after sporting events and other evening activities in the community. Although customer activity is least during the evening hours, the 16 hour limit currently prevents competition In the market and does not allow flexibility during the summer season. This does not mean the store would be required to stay open 20 hours but it lets the business owner decide. With water usage peak of 383 GPD which is 24% of what is allowed, 4 more hours of operation will have very little impact on water usage. (See Attachment D — Engineer Review-Lefter). In relation to the fuel pump stations operation - It should. be noted that since the store opened in 2013 through summer of 2016, the pumps were never turned off, After hours fuel sales is standard with all convenience stores that accept credit cards so that shift workers and travelers have an opportunity to purchase fuel. When the store is closed, there is zero water usage as customers have no access to restrooms. This wording must be added to make clear the pump operation is not restricted, If the pump station restriction is not removed, the condition imposes a restriction not related to water usage in anyway, it is not reasonable or proportional to the "use" which is water — it is not lawful per the Albemarle County Land Use Law Handbook„ KamptnedJune 2017 — Chapter 12—12-100. Pre-App Mtg Comment: STAFF ASKED HOW WILL EACH REQUESTED RELIEF FROM CONDITIONS IMPACT WATER USAGE? First— consider that Condition 93 — flow restrictor makes it impossible to exceed the allowed amount of water. Second — The evening hours of the day have the lowest customer frequency. Water Analysis of the WORST case scenario (as if customers use the same water at night as during daytime hours): Based upon Peak water usage of 383 GPD divided by the current 16 hours of operation = 23,9 gallons of water per hour. Multiply 20 hours x 23.9 gallons per hour = 478 GPD, 383 — 478 equates to an additional 95 GPD If this worst case applied - A 20 hour operation may Increase the water usage from 25% to 29% of the allowed water volume. Allowing the fuel pumps to operate after hours —not one drop of water Is used. Restricting the pump operation after store hours Is NOT related to water usage in any way. UNLESS THE 1,624 PDG IS EXCEEDED —THERE IS NO IMPACT, CONDITION 6 -- REQUEST IS TO ALLOW TWO (2) ADDITIONAL PUMP STATIONS & DELETE THE LANGUAGE RELATED TO NOZZELS SO THE PUMP STATION DESIGN CAN ACCOMMODATE ALTERNATIVE FUEL: DISCUSSION: This was not a voluntary condition. Seven (7) pump stations were allowed. Of these, only 5 serve vehicles. The other two (2) are one (1) for kerosene and one (1) for "off -road" fuel. The revised language changes the 7 to 9. The two (2) pump stations to be added will serve vehicles. More simple language to achieve the same result is to remove the nozzle quantities which is confusing. Fora pump station to dispense alternative fuel, each type of fuel must have separate hoselno771e pieces. This does not change the fact that only one vehicle can be served on each side of the pump station at any timer. Alternative fuel was specifically allowed but the language using "nozzle" quantities inadvertently prevented the Installation of pumps meeting industry standards to dispense alternative fuel. Allowing 2 additional fuel pumps will not change the site layout or canopies. Fuel dispenser sheet —see Attachment E. Pre-App Mtg Comment; STAFF HAS ASKED HOW WILL EACH REQUESTED RELIEF FROM CONDITIONS IMPACT WATER USAGE? It should be stated that there is no water study that establishes a correlation between the number of pump stations and water usage. Pumps don't use water— customers use water. It is reasonable to understand that if a customer needs fuel and has to wait in line because a pump is not available, they spend more time on site and are more likely to come into the store to use the restroom. Having 2 additional pump stations are to handle fuels sales efficiently, Modern fuel pump stationsi dispensers are point of service (POS) so each customer pays with a credit card at the pump — only a portion of the customers come inside to pay cash. First — consider that Condition #3 — flow restrictor makes it impossible to exceed the allowed amount of water. Water Analysis of the WORST case scenario (as if each pump accounts for 117 of the water used): Based upon Peak water usage of 383 GPD divided by the 7 pump stations = 54.7 gallons of water per pump per day. Multiply 9 pumps x 54.7 gallons per pump : 492 GPD, 383 — 492 equates to an additional 109 GPD If this worst case applied - 2 additional pumps may increase the water usage from 24% to 30% of the allowed water volume. UNLESS THE 1,624 GPD IS EXCEEDED — THERE IS NO IMPACT. Special Use Permit "conditions must be reasonably related to the impacts to be addressed, and the extent of the condition must be roughly proportional to the impacts." Per AC Land Use Law Handbook — Kamptner/June 2017— Chapter 12— Section 12 --100 under "Key Principles to Know About Special Use Permits", Nat allowing the additional pumps would not meet the "reasonably relate to the impacts" which is criteria for conditions. CONDITION 8 . NO CHANGE REQUESTED: Discussion: There is no correlation between water usage and overnight parking at this site. Per the AC LU Handbook, "conditions must be reasonably related to the impacts to be addressed". CONDITION 9 — WORDING IS OUT OF DATE: There Is no change proposed at this time so SDP2008 — 0154 approved March 28, 2013 is the applicable development plan. FOR COMPARISON PURPOSES • THERE ARE TWO 2 OTHER SPECIAL USE PERMITS FOR WATER USE AT PROPERTY NOT SERVED BY PUBLIC WATER THAT HAVE BEEN APPROVED IN THIS COUNTY: See Attachment F 1) -- SP2008 -- 00033 — FOR Convenience Store was APPROVED 1213/08 — WITH NO CONDITIONS. (Not even a condition stating the water limit) Allowing 1,000 gpd on this 1.18 acre site is equivalent to allowing 847 gallons per site acre per day. This is more that 2 TIMES the by right amount of water of 400 gallons per site acre per day. 2) SP2015 -- 00012 — FOR Restaurant was APPROVED 815115 WITH TWO (2) CONDITIONS Condition #1 is to Install a water meter and Condition #2 restricts the water usage to 5,000 gpd. Allowing 5,000 gpd on this 1.39 acre site is equivalent to allowing 3,597 gallons per site acre per day (5,00011.39) This is almost 9 TIMES the by right amount of water of 400 gallons per site acre per day. This request is for relief from unreasonable and disproportionate conditions that are excessively limiting the operation of its store on 4.06 acres. The MAJORITY of the water allowed has not been used. The one (1) GPD added by the Special Use Permit has not been used. If the potential increase in water usage from the change to conditions Is added together: 4 additional hours of operation (109 GPD) Plus additional 2 NO pump stations (95 GPD) Based upon peak usage of 303 GPD + 109 GPD + 95 GPD = 587 GPD. The PEAK water volume will ONLY BE increased from the peak 25% to 36% of what is allowed. This is still 1000 GALLONS PER DAY LESS THAN THE THRESHOLD OF 1,625. With the historical water meter data over the past 2 years submitted, the reasonableness and proportionality of the conditions that were imposed can be clearly evaluated. The Albemarle County Land Use Law Handbook, KamptnerlJune 2017 provides the legal reference(s) to rely upon that must be used in this consideration. ATTACHMENTS: A w- CONDITIONS of SP2009.00034 with requested changes incorporated dtd 9.18-17 B — SP2009 — 00034 Approved 11-3-2010 Action Letter did 11-12-10 C - WATER METER DATA did 9-11-17 (PERIOD OF TWO YEARS) D — Letter— Engineer Review of Water Data dtd 9 —15 —17 E — Fuel Dispenser Product sheet F - Other Special Permits — SP2015-00012 & SP2008-00033 G — The Albemarle County Land Use Law Handbook, KamptnerlJune 2017 — Chapter 12 -Special Use Permits L .�' r , - s � .,.. w ", �, 'R � r i- ..I- I . : - t , V ; � '. � ,�. .. llf' ;�` ` ��. .�` • + �' :� { � � . 1. The applicant shall install and maintain a meter on the well head to monitor water consumption. Prior to installation, the model of the meter shall be subject to approval by the Zoning Administrator in conjunction with the County Engineer. Results of daily water consumption shall be made available within forty -eight (48) hours of a request from the Zoning Administrator; 2. Water consumption from all wells on site shall not exceed one thousand six hundred twenty-five (1,625) gallons per day in the aggregate; 3. The applicant shall install and maintain a tamper -proof, flow restriction device limiting water flow to not more than one thousand six hundred twenty-five (1,625) gallons per day. Prior to installation, the model of the flow restriction device shall be subject to approval by the Zoning Administrator in conjunction with the County Engineer; 4. The total building footprint square footage shall not exceed three thousand (3,000) square feet; 5.The convenience store shall not operate between 12:30 AM and 4:30 AM exce t the fuel pum s may remain operational; 6. There shall be not more than sae_nine-(7--9) pump stations and twelve.( with III morethan eight (9) newer fGW six ( 6) pump stations for gasoline (or equivalent fuel), one (1) pump station for diesel fuel (or equivalent fuel), with not more than one1) ne��one (1) pump station for off -road diesel fuel, and W& one (1) pump station for kerosene fuel; 7. If rainwater is collected from roof tops of the pump station canopies or the building, it shall be stored in a lined underground storage tank and utilized for on -site landscaping purposes only; 8. Overnight customer parking on -site shall not be permitted between the hours of 12:30 a.m. and 4.30 a.m. The applicant shall post signs indicating no such overnight parking in such places designated by the Site Plan Agent as a condition of final site plan approval; and, 9, Development of the site shall be in general accord with the-S©P2008 - 0154 to —plea last revised 2/20113 approved March 28,2013.. f dl-fae�l {.s ; COUNTY OF ALBEBIAIRLE Department of Community Development 401 McIntire Road, Room 221 Charlottesville, Virginia 22902-4596 .� Phase 434 29ir-5832 �'mx 43d 9'i2-�126 November 12, 2010 NP Engineering 1860 Browns Gap Turnpike Charlottesville VA 22901 RE. SP200900034 RE-STORE'N STATION Tax Map 56B Parcel 1 Dear NP Engineering, On November 3, 2010, the Albemarle County Board of Supervisors took action on SP #200800056 to allow use of more than 400 gallons of groundwater per site -acre per day for convenience store on Tax Map 56B, Parcel 1 in the White ball District. This special use permit was approved based on the following conditions: 1. The applicant shall install and maintain a meter on the well head to monitor water consumption. Prior to installation, the model of the meter shall be subject to approval by the Zoning Administrator In conjunction with the County Engineer. Results of daily water consumption shall be made available within forty-eight (48) hours of a request from the Zoning Administrator; Z Water consumption from all wells on site shall not exceed one thousand six hundred twenty-five (1,626) gallons per day In the aggregate; 3. The applicant shall install and maintain a tamper -proof, flaw restriction device limiting water flow to not more than one thousand six hundred twenty-five (1,626) gallons per day. prior to installation, the model of the flow restriction device shall be subject to approval by the Zoning Administrator in conjunction with the County Engineer, 4. The total building footprint square footage shall not exceed three thousand (3,000) square feet; 6. The hours of business operation shall not exceed sixteen (16) hours per day; 6, There shall be not more than seven (7) pump stations and twelve (12) nozzle dispensers, with not" more than eight (6) nozzles for four (4) pump stations for gasoline (or equivalent fuel), with not more than two (2) nozzles for one (1) pump Station for diesel fuel (or equivalent fuel), with not more than one (1) nozzle for one (1) pump station for off -road diesel fuel, and with not more than one (1) nozzle far one (1) pump station for kerosene fuel; 7. if rainwater is collected from roof tops of the pump station canopies or the building, it shall be stored In a lined underground storage tank and utilized for on -site landscaping purposes only; 8. Overnight customer parking on -site shall not be permitted between the hours of 12.30 a.m. and 4,30 a.m. The applicant shall post signs indicating no such overnight parking In such places designated by the Site Plan Agent as a condition of final site plan approval; and, 9. Development of the site shalt be in general accord with the submitted preliminary site plan dated December 6, 2009. Permitted modifications may include those required by the Architectural Review Board, those necessary to satisfy the conditions of this special use permit, and additional landscapinglscreening approved by the Site Plan Agent Please be advised that although the Albemarle County Board of Supervisors took action on the project noted above, no uses an the property as approved above may lawfully begin until all applicable approvals have been received and conditions have been met. This Includes: ® compliance with conditions of the SPECIAL USE PERMIT; o approval of and compliance with a SITE PLAN amendment; and approval of a ZONING COMPLIANCE CLEARANCE. An the event that the use, structure or activity for which this special use permit Is Issued is not commenced within twenty four (24) months from the date of Board approval, it shall be deemed abandoned and the permit terminated. The term 'commenced" means "construction of any structure necessary to the use of the permit.° If you have questions or comments regarding the above -noted action, please do not hesitate to contact Ron Higgins at 296.5832. Sincerely, Summer Frederick Senior Planner Current Development Division cc: Jeffries li LLC FAG BOX 910 Crozet VA 22932 Email CC: Elise Hackett, GDS Johnathan Newrbeny, ,Zoning 4 s • 3.22,16 - 9.20,16 9.27.16 - 3.28.17 4.4.17 - 9.4.17 1OF2 7,18.17-8.13.17 27 WEEKS 185 27 WEEKS 271 23 WEEKS 266 R 26 DAYS dtd 9/11/17 'o Low GPD 265/067 206/144 372/200 383/143 224 GPD OVER 102 WEEKS GALLONS Nk---- -041t o 289/174 FAQ: How do you figure out how much water per period has been used? The water meter reading is a measurement in gallons, It is accumulative so you take the previous reading and subtract the new reading, The difference is the quantity in gallons that has passed thru the meter. FAQ: Can the water meter reading be fudged or altered in any way? No, the water meter is tamper proof which is samed model used by ACSA for their customers, Since it is accumulative, there is no way to re -set to a lower reading or alter the reading in any way. FAQ: Why is the meter reading only logged once a week? Standard in the industry for water customers on public systems, a water meter reading is typically collected on a monthly basis for a monthly billing, 1-0 determine the usage per day, that reading is divided by X As a result, comparative water usage data is only available from locations that are served by public water and the monthly volume must be divided by 30 to determine the GPD. Weekly is equally accurate. FAQ: If the water Deter reading is taken daily, will the result be different? In order to show that GPD based upon a weedy reading is equally accurate, daily readings have been loggged for a period of two months. As you can see, the GPD is consistent with the weekly readings (SUMMARY + 4 SHEETS WEEKLY LOG + 2 SHEETS DAILY LOG) MW AbW Log mmell '"o"ftT-A-Q-AvAmm WEEKLY READINGS r---� AVERAGE GPD 174 OVER A 25 WEEK PERIOD IMUZ-3 FM lint IVY? PU ° -, �¢ri'�j; j ,¢per; e A t 6 . � L}6�... �r@•.• A � ¢s - _ a {y} 6 .. %r .9L o @7j4 � [jL s .� h � c ., V � 'O fEC "< i�7+ � 4 �. �. �.!t� � ¢e` � Pa R � ? �i• l,y+ L& ,•.,; �{6, �C Y �� � �� - t., C7 at g CD w C Fa p i w�.r'c'_' vkw Now Los Tmowi OmHmmme-lwmftc-KVA22M WEEKLY READINGS Wdw Mew LOU YM 65 8.1 ammd"e*Twwmmcwm%vAm DAILY READINGS My WE ig Cold Dominion Engineering It(vtcmlxr 15, 201 Albemarle County C'otnmunity Development Department 401 McIntire Rd Charlottesville. VA 221902 SUBJECT: SP2009-00034 Property: TM 558-1,61 15R()C'KFISH GAP'f?KE. Crozet, VA 22932 4.06 Acres Based upon rnt revi"\ ot'thc water usage reading, from the latit two years: 1. 'I'lic water meter is ttttttpCf• proof aS used b1 utility cotnpanie5 fiir water billing, The readings cannot be altered without destroying the meter. ?. The flo\v control device instatled altakes it impossible le to withdra\h more than the: by right amount of 1,024 gpd front the well. Based upon the actual water usage recorded at Restore N Station. the; actual water usage wassignificantly less than the by right faaa)outtt. 3. If'the store hours- are extended to 24 hour, ol'operation, it will not cause a significant increase in the overall water usage. Food service and restroorns account fin• the tnaJority of water usage during the day and night hours will be a very log\ water usage time. 4, Two additional Wol 'aations will cause only a slight increase in the overall water usage. This le;ttLr ser\ es to confErtri that the water usage (and withdrawal) at the Restore N Station has been less than the ntaximurn pe nnitted by right amount of 1,624 gpd. There is no risk of- execeding the by right amount water withdrawal of 1,624 gpd with 24 hour operation and two additional pumps. .w T'T l Siucercly,w� Michael C'raun PE 'Al Old Dominion Lrigineering 2036 Forest Drive . Waynesboro, VA 2980 PHONE t 540) 942-5600 - FAX (540) 213-02() Alternative fuel users make up a fastgrowing segment of your customer base. And EncoreO offers them a fall -featured flexible fuel dispenser WA all the some sales tools and value-added content as a standard Encore unit. F The industry's broadest flexible fuel option, Encore offers up to five product selections from one fueling position: Its a smart investment that lets you maximize branding and soles Opportunities with one of the fastest -growing customer groups in retail fueling. Ali with the unmatched durability and reliability you expect from the industry leader in flexible fuel dispensers. Encore S offers available color screen and Applause'" Media System —all the same options as a standard Encore S dispenser Internal components optimized for use with alternative fuels, including biodiesel and [85 2-year parts and labor worranty on all new Encore flexible fuel dispensers COUNTY OF ALBEMAIUR Depar tknew of Community ]Development 403 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 September 4, 2615 te1Pchum's rres le Hill Mokencluie 99 Bloomfield Rd Charlottesville Va 22903 SP201500012 echurn's Trestle Dear Mr. McKeachnio: On August 5, 2015 the Board of Supervisors took action ail your Special Use Permit application to allow Use of more than 400 gallons of groundwater per site -acre per day for a restaurant under Section 22.2.2 ofZoning Ordinance on 'iMP 05700000,0031A0 in the White Hall District. The Special Use permit was approved by the Board's adoption of the attached resolution and conditions, Please be advi.ed that although the Albemarle County Board of Suporvisors took action on the pr°oje,2t rooted above, no uses on the property approved above may lawfully begin until all applicable approvals have been received and conditions have been met. rats includes., compliance with conditions of the SPECIAL USE PERMIT; s approval 4f compliance with SITE PLAN; and ® approval of a ZONING COAPLLkNCE CLEARANCE, Before beginning uses as allowed by this special use permit or if you have questions regarding; the above -noted action, please contact Rebacca Ragsdala at 296-5832. S incorely, David Benislz Acting Director ofPJai ping CC: Waterstreet Studio, Lie; Alan Franklin, ;11:' 418 East Main Street Charlottesville Va 22902 RESOLUTION I TO APPROVE SIB 016-1 E-CHU ' TRESTLE NOW, R BE IT REBOLVED that, upon a aoof the foregoing, Transmittal Report prepared for SP 2015-12 and all of Its attachments, the information presented at the public hearing, and the factors relevant to a special use permit in Albemarle County Code § 1 B- subject i the conditions attached hersto. MW1Pzk A-� N-- Mr. Boyd Y Ms. Dittmar M. MIIek Ms. McKeel Y Ms. Palmer Y Mr. Sheffield SP-210164=15 lfflawhurn 4 rnogtb Go"dUROns 11. The applicant shall install a meter on ft wall head to monitor water consumption. Resob of daily water consumption monitaring vW11 be made available within forty-eight (48) hours of a request from the Zoning Administrator' 2. Water consumption shall be restricted to a maximum of five thousand (5,000) gallons per day, 141 3�� F'f 0-< RECEIVED COMMUNITY DEVELOPMENT E 2, 12-1 rL - S7 ISI ta cr moo z"D A .5 m m fr is fi \\� \�� \ � \\\\���y I-lo",d Y&N, f, 41) . ..... his,, 1011,11 : " I',' � i I�i ol� "I i , , � ..,re i I I'jwfo, 71- hh' 0, -v F oyjk id Ieyd Fo fh" (f Is did 4'11Qc m bE l!-!-,,d li;d ffl,",do", "I 'h" Chapter 12 Special Use Permits 121100 Intfoduction Undet Virginia Code § 15.2-2286(A)(3), a governing body is authorized to grant special exceptions "under suitable regulations and safeguards." Special exceptions are also known as jpea7a1use pet7),Ws or emidilioual rise pervd& (the tern special use permit is used in this chapter, except as otherwise noted), though they may not all necessarily serve the same purpose in a particular locality, as discussed in section 12-200, See Mirginia Code f 15.2-2201 (dentition of sfre, ial exo ption). A governing body may delegate the authority to grant special use permits to the BZA. Tirginia Code g 15.2- 23o9(6). For example, a BZA could be delegated the authority to consider special use perilaits for off -site signs. A governing body may also withdraw that authority. Cherie, field CmirAmo adon P. Board of ZoniggA-Ppeals, 215 Va. 399, 209 S.E.2d 925 (1974) (BZA had no power or authority to consider an application for a special use perauit where, after the application was filed but before it was considered by the BZA, the count3,'s zoning regulations were amended to withdraw the authority of the BZA to consider special use permits and to xesetve that power in the board of supervisors). si s &incrw ll vut S cia1 Use Penulu Whether anted b the over body or the BZA, special use permits are legislativei _. • � y governing Y p p in nature. • Uses alloNved by special use permit are considered to have a potentially greater impact than those allowed as a matter of right. • Special use permits must be evaluated under reasonable standards, based on zoning principles. • Impacts from special uses are addressed through conditions. • Conditions must be reasonably related to the impacts to be addressed, and the extent of the conditions 3Es.sr ,;t rra.,,rPti proportional to the impacts. • Decisions by a governing body granting or denying special use permits are presumed correct and reviewed under the fairly debatable standard; decisions by a BZA granting or denying special use permits are also presumed correct, but the presumption may be rebutted by showing to the satisfaction of the court that the board of coning appeals applied erroneous principles of law, or where the discretion of the board of zoning appeals is involved, the decision of the btaard of zoning appeals was plainly wrong, was in violation of the purpose and intent of the zoning ordinance, and is not fairly debatable. 12-200 The nature of special use permits Zoning district regulations gpically delineate a number of uses that are allowed as a mutter of right, and a numbex of uses that axe allowed by special use permit. Uses allowed only by special use permit are those considered to have a potentially greater impact upon neighboring properties or the public than those uses permitted in the district as a ,matter of right. Board of Supervisors of iwairfasc County u. Southland Corp., 224 Va, 514, 297 S,E.2d 718 (1982), The special use permit procedure, by its very nature, presupposes that a given use may be allowed in one part of a zoning district, but not in another. Bell v. 00 Going! of City of Charlottesville, 224 Va. 490, 297 S.E.2d 810 (1982) (rejecting claim that city's zoning ordinance violated the uniformity requirement of Virginia Code § 15.2-2282). Although by definition special exceptions pertainto uses (1-wgfrria Codes 1.5.2-2201 (de,finida, of sfiedal,,aption)), it appears that the meaning of use in this context may be broader. In Board of Sipenirors of Iaairfax Couna3F v, Rabersson, 266 Va. 525, 587 S.E,2d 570 (2003), the county's zoning ordinance allowed "deviations" from certain setback regulations with conditions, if approved by the board of supervisors. 'Ile deviation was an alternative procedure to obtaining a variance from the BZA. The Virginia Supreme Court classified the deviation as a special exception, "analogous" to a special use permit of a conditional use permit, and analyzed it the same way as it would those types of permits. In Tom# of 04rcoquan v. Elvi Street DeUelofisnent, l'ns., 2012 Va. I,EXiS 104 (2012) (unpublished), the Virginia Supreme Court characterized a special exception to disturb steep slopes as a density -related permit. 12--1 7'he Mbemarlo county j nild Use h;w Nandbwk Katnptner/Junt! 2017 A special use permit is different fiorn a variance. See chapter 13. A special use permit cannot alter the provisions of a zoning ordinance, Northam##n County .board of'2onin8..4PPeals P astetya Shorn Dewlap enf Corporation, 277 Va. 198, 671 S.E.2d 160 (2009); see also Board fSuPeruisors of Washington County t: Booker, 232 Va. 478, 352 S,E,2d 319 (1987), discussed in the following paragraph; Sinc,Wr a New CinS#1ar Wifrless, 283 Va. 567, 727 S.E.2d 40 (2012) (though not deciding whether a county's regulations allowing the distutbance of steep slopes was a special exception, the waiver regulations were analogous to a special exception and were legislative in nature). A special use permit also cannot be granted by implication. gourd of Srrpetvirors of iflafkingtou Coustiy v Booker, 232 Va. 478, 352 S.E.2d 319 (1987). In Booker; the landowner obtained a rezoning of his land in 1975 from A-2 to B-2, and informed the board of supervisors of his intention to establish an automobile graveyard and junkyard. Neither Of those uses was allowed by ,tight or by special use permit in the B-2 zoning district. In 1981, the county amended its zoning regulations requiring a conditional use permit .for those uses, but only in the M--2 zoning district. 'fine board denied Booker's application to rezone his property to M-2 and ordered him to discontinue the use and remove the vehicles fml n his property. The Virginia Supreme Court concluded that the Booker's use did not have noznconfornaing status, adding that "(i]t may be that the Board intended ... to grant Boohet a special exception. But an automobile graveyard was not then and is not now a permitted use in the B-2 zone. I3ooher did not apply for a special exception in that zone (and] the. Board had no power to grant an exception by implication..." Booker, 232 Va, at 481-482, 352 8..E.2d at 321. Whether granted by the governing body or the BZA, special use permits are legislative in nature. Board of SuPervisorr of Fairfax Caurrij� v, Mcl]otiald's CorPomiion, 261 Va. 583, 544 S.E?d 334 (2001); Richardson v, City of Suffolk, 252 Va, 336, 477 S.E.2d 512 (1996), Aisles v. 'Town i�',painter, 239 Va. 343, 389 S.E.2d 702 (1990) (when granted by a BZA); Koehne P. Fait&XCouniy Board of ZoningflPPealf, 62 Va. Gir. 80 (2043). Although zoning regulations may require that an approved special use begin within a certain period of time, Virginia Code § 15.2-2209.1(B) extends the period of validity for ;special use permits outstanding on Januar4 1, 2011 until July 1, 2017 if the special use permit is related to "new residential or commercial development." "This statutor y extension pertains only to the date by which the use must be started, acid does not apply to any requirement that a special use be terminated or ended b'v a certain date or within a specified number of years (fee d 4ws.don of that iaiue in �ecTion 12-51c3j, A locality's special use pen7mit regulations may alloy the permit to be revolved if the use is found to be in violation with the permit's conditions, at least on activities directly connected to the permit, Alexandtia Ci* Commil V. Mirani Potomac Diver, LLC, 273 Va, 448, 643 S.E M 203 (2007), see .i ratvh ry v. Board of Supervisor of Chesterfield Cotttrty, 18 Va. Cir. 230 (1989). In Mirant, the Virginia Supreme Court held that the city could not revoke a special use permit for purported violations of certain emission control limits inn its state -issued stationary source permit to operate because those purported violations were beyond those having a nexnrs to the purpose of the special use permit, BZA's have express statutory authority to revoke a special use permit under the procedures provide by statute. Virginia Cede f 15.2-2349(7). 12,300 L.imitationa on the use@ for which special use Petwits may be required A special use permit may not be required within an agricultural zoning district for any production agriculture or silviculture activity (Vighda Code § 15.2-2288) and gUali4ing small scale biofuels production (Virginia Code; 1.52- 2288.01). In the absence of a substantial impact, a special use permit also may not be required within an agricultural zoning district for usual and awrstoma►y activities at farm wineries (Virginia Coda § 15.2-2288.3), usual and customary activities at limited breweries (llirgirtia Code, 15.2-2288.3.1), usual and customary activities at limited distilleries (Virginia Code f 15.2-22883:4, and usual and customary activities at agricultural operations (Virginia Code f 152. 2288.G). Activities as farm wineries, limited breweries, limited distilleries and agricultural operations that ate not usual and customary may otherwise be subject only to rrasonable restrxetionr, which may or may use permit. not warrant a special 12-2 111e Albcmnrtc (;aunty ],and Uw law i ]andbook Kftoopiner/June 2 )17 <i special use permit also may not be required for the following uses, provided that statutorily prescribed m circustances exist: (1) cluster developments (l"irginia Code,' 15.2-228S.1); (?) manufactured housing in agricultural zoning districts (T- gitda Code, 15'.2-2290(.rl)); (3) group homes of 8 or :Fewer persons or residential facilities for 8 or fewer aged, infirm or disabled persons, which must be allowed by right in zoning districts where sin e family 91 residential use is allowed by right (I- itginia Code � 15.2-2291); and (4) family day homes of Cave or fewer persons, Which must be allowed by right in xonirig districts where single family residential use is allowed by right (Miginia Code g 15.22292), A special use permit also may not be required as a condition of approval of a subdivision plat, site plan or building permit for the development and construction of residential dwellings at the use, height and density permitted by right under a zoning ordinance. Mitginia Code f 15.2-2288.1. These limitations do not prevent a locality from requiring a special use permit for: (1) a cluster or town center as an optional form ofresidential development at a density greater than that permitted by right, or othenvise permitted by local ordinance; (2) a use in an area designated for steep slope mountain development; (3) a use as a utility facility to serve a residential development; or (4) nonresidential, uses including, but not ]united to, home businesses, home occupations, day care centers, bed and breakfast inns, lodging houses, private boarding schools, and shelters established for the purpose of providing human services to the occupants thereof. Fir inia Carle § f5.2-2288,1. SUMMW ofthe Nees fur "ch a I-OCO!ty May Not Re rtste � � Deals Line 1Pes It '-duetiolr dgrimlture, sih,4wIlttrg and small soak liiofw1s p-duraon, and tMatn aatiaih'e, at farm wineri,,, IYndtad ,ewes .ies, limited distillener, dMd a8drulttrralopenatiau• in an agricultural zoning district. 0 Cluster demlopnieats except where a cluster or town center is allowed as an optional form of residential development at a greater density than that permitted by right (see discussion of Virginia (.""ode § 15,2-2288.1, below), Manr#farhmd hofrsiogin an agricultural zoning district. ® Gtvrp Names of 8 ora-Woed kyirrgfacdifies for 8 or fewer aged, infirm or disabled persons in a zoning district where single family residential use is a by right use. Fami� drsy homes of 5 orf inerpmons in a zoning district where single family residential use is a by right use. Tents serving as a temporary structure for 3 da-ys of less used for ;activities such as weddings and estate sales. Ax a (ondr.'tion of appmml of a mbditimon plat, site p1wi ae bwldiq permit for a residential development where the dwe] hngs meet the use, height and density requirements allowed by right, with exceptions in Virginia Code § 15.2-2288,1. ® Temporaryfawn 6, health tair x1matrtres established in compliance with Virginia Code § 15.2-2292,1. W Tv addresr solely aesibetir considerations outside of a historic district established under Virginia Code § 15.2-2306. In Town of Orrogxan u. Elm Street Development, Inc;, 2012 Va. LFXIS 104 (2012) (unpublished), the developer was the contract purchaser of a 3,68 ache parcel zoned R-3, which allowed up to 16 multi -family units per acre. Approximately one-half of the parcel had slopes greater than 201,10 and the town regulations required a special use permit to disturb or develop on those slopes. Although staff recommended approval of the special use permit with 12 conditions, to which die developer agreed, the town council denied the permit- The developer sued. The town contended that Virginia Code § 15.2-2288.1 did not apply to the town's steep slopes regulations and that the entire parcel was not developable by right because the by right density could be calculated only in compliance with the steep slopes regulations. The Virginia Supreme Court rejected the town's arguinents, concluding that Virginia Code § 15.2-2288.1 "expressly prohibits a locality fmLn requiring a special use permit as a precondition to development tliat is otherwise permitted under a zoning ordinance," and that the town's steep slopes regulations interfere "with residential development that is otherwise permitted within the zoning district." The Court also rejected the town's argument that the developer had no right to disturb the steep slopes in the absence of a special use permit, concluding that the town "cannot permit this development by right and simultaneously require an SUP as a condition of development on the property... By requiring an SUP, the Town has politicized what should be a ministerial decision ... [IJhe steep slopes SUP requirement .. , has no hearing on any density calculation in this instance." To reach that conclusion, the Court characterized the special exception as a density related Permit which was therefore prohibited by the statute. Lastly, the Court rejected the town's argument that the Chesapeake Bay Preservation Act gave it the power to require a special use permit. 12-3 ThL .Albemartc {:amy Lund Use Lilo• [hridbuok Kampancr/tune 2017 The requirement for a special use: permit also truly not be based solely on aesthetic considerations, Allrtate Development Co, v. City of Cbesapeahe, 12 Va. Cit. 389 (1988) (finding that requirement for special use permit for modular houses in a district, but not for stick -built houses, arose solely because the neighbors did not like the appeaxance of modular houses); but see Virginia Code § 15.2 2.306, allowing loaralities to require arehitectural compatibdity within dUtids established render that sn*on, 124M Ptocedural requirements prior to and during a hearing on a special use permit application A number of procedural rules apply to the conduct of a hearing on a special use permit application, but the procedures differ depending on whether the special use permit is granted by the governing body or the BZA. 12-410 Special Ilse permits considered by the governing body Special use permits considered by the governing body are subject to "suitable regulations and safeguards" established by the governing body. V iginia Code I 15.2 2286(3). These suitable regulations and safeguards should include the requirement that the planning commission, if its review and recommendation is required, and the governing body, take timely action. One approach is to impose the same timelines required for zoning map amendments, e.g., requiring a recommendation from the planning conunission within 100 days (Virginia Cade § 15. 2- 2285(B)) and requiring the: governing body to act within 12 .months. Virginia Code § 15.22286(7). In addition, notice must be provided as required by Virginia Code 5 15.2-2204(C). See ehapter 34. 12-420 Special use permits considered by the BZA. Special use permits considered by the BZA axe subject to the following procedures., Scheduling the hearing on the special arse perv)it applieation. q'he BZA must "fix a reasonable time for the heating" on a special use permit. Virginia Code g 15.2-2312 r Notice of the hearing. The BZA must "give public notice thereof as well as due notice to die parties in interest." Virginia Code S 15.2-2312. Notice of the hearing must be provided as required by Virginia Code 5 15.2-2204. Mirginia Code § 15.2-2309(6), u At the hearing the right to equal irnre far a party to present its side of the rase. Ilse BZA must offer an equal amount of time in a hearing on the case to the applicant and the staff of the local governing body. Virginia Code § 15.2- 2308(C). i Decision. If the BZA decides to grant a special use permit, it .may impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will, continue to be complied with. Virginia Code 5 15.2-2309(45). See section 12 500, for a discussion of the minimal standards that must guide the decision -making prores ; see se&ott 12-6001or a di, mrsion of evnditionx. a Time for the decision. The decision must be made within 90 days. Virginia Code f 15.2 2312. This time period is directory, rather than mandatory, and the B7A does -tot lose its jurisdiction to act on a variance after the time period has passed. See Tran v. Board of Zoning Appeals ofF,4ifast County, 260 Va. 654, 536 S.E.2d 913 (2000) (BZA did not lose jurisdiction to decide appeal after 550-day delay). ® Required vote. The concurring vote of a majority of the B7.A's members present and voting is necessary to grant a special use permit. Virginia Code § 15.2-2308. i`indirtgr to rapport the dedfion. Findings axe not required unless they are required by the Zoning ordinance. Newberpg, Station HomeownerrAsroaWion v. Board ofSrrpemhorx afFairfax County, 285 Va. 604, 740 S.E.2d 548 (2013). I2-4 The Albcmrle County I alto lrsc I.nw 11n2ldb4j0ok Knmptner/Juno 2017 12-900 Minimal ataendards must guide the decision-maldtag p,rocens A use allowed by special use permit is permitted "only after being submitted to governmental scrutiny in each case, in order to insure compliance with standards designed to protect neighboring properties and the public." Board of Srrpervirorr ofFul#�,vCounty v. Soullland Corp,, 224 Va. 514, 521, 297 S.E.2d 718, 721-722 (19$2); Darrel a Lorrattg Appeals Board of Greene Como, 30 Va, Cit. 312 (1993), An application for a special use permit must be examined by public officials, and be guided by standards set forth in the zoning ordinance, to determine the impact the proposed use will have if carried out on the property. Southland Corp., supra. Special use permit regulations adopted pursuant to Virginia Code § 15.2-2286(A)(3) "need not include standards concerning issuance of special use permits where local governing bodies are to exercise their legislative judgment or discretion." Jenrringr P. Board of Supemisors of Northumberland Corm,*, 281 Va. 511, 520, 708 S.E.2d 841, 846 (2011), quoting; Bollinger P. Board of Supervisors of Roanoke CarfV, 217 Va. 185, 186, 227 S.E.2d 682, 683 (1976). Thus, in Jennings, the Virginia Supreme Court upheld the county's granting of "special exception permits" "subject to such conditions as the governing bad} deems neccssarr to carry out the intent of rhis chapter." In 8911 tiger; the Court upheld the county's granting of a conditional use permit for a landfill under a zoning regulation that simply stated. "The location of commercial amusement parks, airports, boxtow pits and sanitary fill method garbage and refuse sites shall require a conditional use permit. These permits shall be subject to such conditions as the governing body deems necessary to carry out the intent of this chapter," In affirming the granting of the permit, the Bollinger Court was persuaded by the thorough review conducted by the county, even though the standard for granting the special use permit was broad, stating: "it appears the Board acted only after it had the benefit of thorough studies, numerous tests, and after due deliberation on its part. These studies and tests revealed that the lazed is suitable for landfill purposes. The terms and conditions imposed by the Board indicate that it was well aware of the uses of suaounding land and the characteristics of the property involved." In Cale P. City Corfndl of GO of Egynesbom, 218 Va. 827, 832, 241 S.E.2d 765, 769 (1978), the ciVs zoninng regulations allowed the city council to issue special use permits "whenever public necessity and convenience, general welfare or good zoning practice justifies such special exception or use pet mits which may be granted by the council adopting an ordinance granting the same after considering the recommendations of the city planning and zoning cotnrnission." In holding that a special use permit for a 151-unit apartment complex on a 3/4-acre parcel was invalid, the Virginia Supreme Court said that the above -cited standards in the ordinance were "an open invitation for a special exception to be granted without any consideration being given to Certain basic principles of law applicable in the zoning field. It permits a lack of adherence by City Council to a fundamental rule that zoning regulates the use of 12nd." Cole, 281 Va. at 833, 241 S.E.2d at 769. The critical distinction between fenningslBollingerand Cole is that the standard in Cole was stated in the disjunctive .- the city council could consider "public necessity and convenience, general welfare or good zoning practice." In other words, the city council was not [zed to the zoning statutes or good zoning practice when it considered a special use permit, and this rendered the city's regulations invalid. At bottom, all that a zoning ordinance trust provide is that the governing body's consideration of a special use pernut be taken within the framework of the zoning statutes and the principles that apply to zoning. In granting a special use permit, specific findings are not required winless mandated by the zoning ordinance. Nex herry1 Station NomeawnerrAumiation a Board ofSrfperpisors ofFWVir a - County, 285 Va. 604, 740 S.E.2d 548 (2013) (`Wile a zoning ordinance must set forth standards under which applications for special exceptions are to be considered when local governing bodies delegate that legislative power, the ordinance need not do so when the local governing body has reserved the power unto itseh'a . Typical standards applicable to special use permits include consideration of (1) the impacts of the special use on the character of the district; (2) the impacts of the special use on the welfare of the landowners and occupants of land in the district, see Hell P. City C:m&il of Crb, qj'Charloitesville, 224 Va. 490; 297 S.R.2d 810 (1982); and (3) consistency with the comprehensive plan. Naliondl Memorial Park., .Inc. v. Board ofZoningAppeals of Fairfax Count, 232 Va. 89, 348 5,E.2d 248 (1996) (upholding denial of special use permit to operate crematory based on the negative impact of the proposed use on neighboring properties and inconsistency with comprehensive plan). Other factors that may be considered include: (1) the character of the property; (2) the general welfare of the public; and (3) the economic development of the community. Bell, supra. These factors are also aldn to those delineated in Virginia Code §§ 15.2-2283 and 15 2-2284. See Lajbon a Board o� j'Zonin,gApp.-a1r, 91 Va. Cir. 391 (2015) (invaliding the 12-5 Thu ARx!madc (:ounty L"d Ilse taw t hndbex,k Aamptner/f une 2017 board of zoning appeals' approval of a special exception pertaining to setbacks where the board failed to make the required findings and, instead, based its decision on the fact that the city's commission of architectural review had approved the project; the zoning ordinance required that'Wie board shall be sathfledp that, among other things, "the departure from the applicable yard and./or lot coverage requirements is the minimum necessary to accommodate the intended purpose of the dwelling") (italics in original). If specific standards are adopted, deference should be given to the governing body in determining whether the standards were considered when the action was taken. In Shenandoah Mobile Co. a .t'tzderiek County Board ofSulietvirars, 83 Va. Cit. 113 (2011), the applicant challenged the board's denial of a conditional use pertrtit contending that the board failed to give adequate consideration to the standards in the zoning ordinance. The circuit cow rejected this argument, noting that the motion maker "touched on" four of the sire standards and that it knew "of no requirement that each individual Board Member express the reasons for voting for or against the motion-" Shenandoah, 83 Va. Cir. at 116. The court otherwise found substantial evidence in the record to support the board's decision. Another circuit court has held that the governing body is not required to make specific findings with respect to each and every potentially relevant clause in the comprehensive plan, nor each and every clause of the purpose and intent section of the zoning ordinance. Koehm P. Faitfaar CounY Board of ZoniggAppealt, 62 Va. Cir. 80 (2003) (county's special use permit regulations that die proposed special use be "in harmony with the adopted comprehensive plain" and "in harmony with the general purpose and intent of the applicable zoning district regulations"). Part of that analysis will depend on the. language of the zoning ordinance. As shown in Bollinger, the courts will look at the decision maker's analysis of the facts and how they are applied to the standards, even if the standards are broad as they were in Bollinger and Jennings: Compare to Mutter zf. Irlashington County Board of Supervirots, 29 Va. Cir. 394 (1992), where a circuit court concluded that a special use permit issued without consideration to the locality's comprchensive plan and whose justification was devoid of any meaningful studies or analysis was unreasonable, In Mutter, the court concluded that the county's approval of a solid waste convenience station in an environmentally sensitive location with traffic safety issues was unreasonable, arbitrary and capricious. The court noted that the board failed to consider the county's comprehensive plan, conduct any site testing, consult with various environmental and other state agencies, and failed to even consult with the county's landfill manager for his assessment of the suitability of the site. Lastly, a proposed special use permit need not necessarily be granted merely because an applicant adheres to the applicable zoning regulations. County Board fArlitigton County t,. Bratic, 237 Va. 221, 377 S.E.2d 368 (1989). Rather, a special use is prohibited unless on applicant obtains a pennit. Amoco Oil Co. P. Zoning llppeah- Board of she City of Faif, fax; 30 Va, Cir. 159 (1993) (upholding the denial of special use permit because a number of the applicable special use permit crite.tia were not met). 12-600 Impacts from special uses ate addresaed through conditions If a special use permit is granted, the potential impacts are addressed through reasonable conditions. Byrum P, Board of SuperPisatr of Orange Coimb,., 217 Va, 37, 225 S.E.2d 369 (1976). Under Virginia law, the conditions imposed must bear a trasohable relatiotmhip to the legitimate land use concerns and problems generated by the use of the property. Cufr/i P. Board of 3irperwisors of Fait Ji v County, 227 Va. 580, 318 S.E,2d 407 (1984). A special use permit may not be denied indirectly by approving the special use permit but imposing unreasonable and impossible conditions on its use. Byrum, supra; see also, Virginia Code § 15.2 2208.1. See seelion 10-540 for a disainion of T %itgrnia Code 1 15.2- 2208.1, which applies k both pro�er;r and spedal uae permit wndidonr. A BZA is authorized to "impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with." I i inia Cade 15.2- 2309(G), I2-610 Conditions imposed by the governing body ate to address impacts and are to yt �ar�laarnt tv Unlike proffers that accompany a rezoning considered by the locality's governing body, special use permit 12-G The Albumarin County- I and Use L;nv E landbarok KnmPtIver/lune 2017 conditions are not volunteered by the landowner and need not be developed through negotiation. Conditions may 'be imposed as the governing body or the BZA. determines to be appropriate as "suitable regulations and safeguards" for special use permits. Virginia Code § 15.2228440). As explained by John H. Foote, planning and Zoning, Handbook of)lveal G000rnmenl Law, § 1-10.03, p. 1-61, (2015), the phrase "suitable regulations and safeguards" is "uniformly understood to mean that the locality may unilaterally impose reasonable. conditions on the issuance of such penraits or exceptions, in contrast to proffers that trust come voluntarily from the applicant. 11 ,See alto Stabler u Prima George Courtly, 81 Va, Cir, 308, 320-321' (2010) (condition imposing 14-day limit stay rule on campground was upheld because there is a reasonable basis to distinguish campgrounds from sites with permanent dwellings; a "local governing body is permitted to impose involuntary conditions on the grant of a special exception"). Special use permit conditions also may require administrative approvals by others. Fuentes P. Berard of ,fttperz*orr of Eairfah Court#, 2000 Va, Cir, LEXIS 130, 2000 NVL, 1210446 (2000) (conditions imposed that required Health Department review and approval of a sewage treatment/disposal system and a groundwater monitoring system were not unlawful delegations of legislative authority; the board was authorized to delegate these administrative functions in a special use permit condition). In connection with residential special use permits, if a landowner proposes affordable housing, any conditions imposed roust be consistent with the objective of providing affordable housing; when imposing conditions on residential projects that specify the materials and methods of construction or specific design features, the governing body must consider the impact of the conditions upon the affordability of housing. Virginia Code g 15.2-2296(A)(3). Special use permit conditions pertaining to uses involving alcoholic beverages have been the subject of both judicial review and additional legislation. In Coons ty of Chestq field a Eiedy Hill, L.td., 263 Va. 197, 200, 559 S.E.2d 627, 628 (2002), the Virginia Supreme Court held that a condition in a special use permit stating "jnjo alcoholic beverages shah be permitted" was not preempted by the Alcoholic Beverages Control Act (see Virginia Code § 4.1-128) because it was a "valid zoning ordinance ... regulat[ingj the location of an establishment selling .. , alcoholic beverages," as permitted by the Act. Similarly, in City of Norfolk P. Thy House, 222 Va. 414, 281 S.E.2d 836 (1981), the Court held that an ordinance requiring a special use permit for adult uses (such as sellers of alcohol and adult movie theaters) within 1,000 feet of one another did not violate Virginia Code § 4,1-128. The governing bodies of the cities of Norfolk and Richmond also are enabled under Virginia Code § 15.2-2286(A)(3) to impose other conditions on retail alcoholic beverage control licensees. Norfolk may impose conditions providing that the special use permit will automatically expire upon a change in the ownership, possession, management or operation of the property. Richmond may impose conditions requiring automatic review of the permit upon a change of ownership or possession of the property, or a transfer of majority contxol of the business, and may revoke the permit after notice and a public hearing. One recurring issue of interest is whether a governing body may impose limitations on the life of a special use permit. BZAs have express authority to impose limitations on the life of a special use permit O-litginia Code 9 15.2- 2309(6)), local governing bodies do not have such express authority. The governing body of the City of Norfolk is enabled to impose a condition on any special use permit relating to retail alcoholic beverage control licensees which provides that the permit will automatically expire upon the passage of a specific period of time. Tirginia Code J! 15.2- 2286(A)(3). No similar express authority exists for other governing bodies for general purposes, and a number of localities have accordingly concluded that the}' do not have implied authority to impose such a condition. Some localities conclude otherwise. Under a Dillon Rule analysis, governing bodies are enabled to grant special use permits under "suitable regulations and safeguards." P irginia Code § 15.222861(A)(3). The Gencral Assembly has not directed .how or what those suitable regulations and safeguards must be. Therefore, if a time limitation (or the authority in the zoning ordinance to impose such a condition) is reasonable, the condition should be considered to be within a governing body's authority. An alternative solution to this question is to obtain the agreement of the applicant for such a condition. See Board ofSrtpetvirmY of Pager Wilkam Como# P. Sic -Gray Developers, inc., 230 Va. 24, 334 S.E.2d 542 (1985) (subdivider may voluntarily agree to make improvements to existing access roads and will be bound to that agreement, even if the county did not have the authority to otherwise requite such improvements as a condition of subdivision approval). 12-7 The Mbcmarfr County rand Use fair I1andbtw,k €Camp nor/tune 2017 1-620 Conditions must be reasocealriy aod ptopotdonally related to the impacts mmildn om r > �zse When a locality seeks the dedication of land or other property (such as fees) as a condition of a land use approval, such as a condition to a special use permit, it must be certain that these conditions of approval (1) have a nexus that is related to the impact of the proposed development, and (2) are roughly proportional to the extent of the ingpact. Koontz rr. St , John' Rivmr Water Marragmiew Dis*rt, 570 U.S. 133 S. Ct, 2586 (2013); Nollan P. Cal fomia Coastal Ckvmission, 483 U.S. 825,107 S. Ct. 3141 (1987); Dolan a City of Tigard, 512 U.S. 374,114 S. Ct, 2309 (1994); see also Virgiota Code 15,2-2208.1 (creating monetary remedy fox ituposition of unconstitutional conditions). If this two -pronged test is not satisfracl, the locality has imposed an unconstitutional exaction. This principle applies even, when the locality denies the permit because the applicant is unwilling to agree to or accept such a condition. Kaoak supra. See seetion 6440 forfaaather direwx&g of ex'attiow. 1 630 Developing coodition Wiguage Special use permit conditions typically ori&ate from the locality's staff. Following are some suggestions for writitag, reviewing, aaad revising pxoposed conditions- * State each condition eleanly. Each condition should be a declaratory statement, using clear and concise language as to what must be performed., when it must be performed, when it must be completed, and, if applicable, how it must be perfonned. Vryte cacti moditiatt with the rligrriy of a dotting wgulcalion: A condition becomes part of the zoning regulatioxas applicable to the property. lhetefote, it should be written with the dignity of a zoning regulation, using terminology found in the zoning ordinance. * Selpaxordr earefully: The words in a condition most be carefully selected. Use the word "shall." rather than "should" or "'may." If a condition requires that the owu r cararaot proceed until the county en&= approves a plan, the condition needs to state that "the owner shall obtain approval of the plan from the county engineer before. , .," rather than stating that the owner "shall submit a plan." Never use "etc." in a condition. * Consistently rare the same wrd to refer to the x4meperson, filaee or thing. A person, place or thing always should be described or identified by the same word. * Use m wplste setamacer Conditions should be written in complete sezateraces. * Ett un that each condition is comprehensive: A condition should be written in comprehensive language that addresses the reasonably fore.�eable issues that may arise fiom the condition, * Emwre that each eons . m imposes standards thrai ate enforceable: Every condition must be reviewed by the zotti�¢; administrator's office to ensure that the condition imposes standards that are enforceable. fart of the issue of enforceability pertains to the clarity of the L%ng aage used, but the other part pertains to whether the language actually imposes a standard that can be enforced. Because the zoning Administrator will have the task of enforcing the conditions, be certain that the Zoning adn nisttator loos the opportunity to provide cota=ents as to not only the language, but the subject matter (e.g., a condition that restticts a mtauraw use to between the hours of 5:00 a.m, and 1,00 a.wn may require a zoning inspector to be in the held between 1,00 a.m. and 5:00 a.m. if the hours of operation become an enforcement issue). * Be carol oat to make the cottdition too spec ,6r. In providing clarity, conditions can become too specific so that they become overly restrictive. Examples of being too specific include referring to the applicant by name (because the special use petmit runs with the land), providing a. specific. measurement for height, distance, or something similar in an absolute whm you intend to establish a minimum or a mmrimum. 12-5 Tho AbetuaA4,CountyIIndUstImyI-bnAaalc Kamptnar/June 2017 * F.`nasrrr that each sorrditio# Mpo es only regAtirementr chat addwx ide►ntifrad impactr: Conditions may only address impacts resulting from the use. Ensure that the conditions do not modify, waive, substitute or relax otherwise applicable zoning regulations. Use similar knngnaage fnr,dwilar• sitreationr. The locality's staff should pxopose language that is similar to language previously approved for a similar q-pe of condition. s .Be certain that the time afpgformance a clearly stra 0 Be certain that the language clearly states when the owner rxnust do the promised or required acts. * E vurr that The con46ors are wel4rganhtr,� Ensure that the conditions are wellorganized by having conditions that are related to one another located next to one another. Ensurrr that the rondiiivns do anal impure, or would not be perrdved to impose, an obligation on the locality, PDOT, or only other public enti!r. Conditions address impacts from a special use and they should be drafted so as not to impose, or be perceived to impose, an obligation on the locality, VDOT, or any other public entity. This problem often arises in the context of establishing the timing for performance. For example, a condition stating that the "final site plan shall be approved by the site plan agent prior to commencing the use" could be read to niean that the director must approve rite site plan. Alternative wording to address this issue would be, for example,'gbe applicant is required to obtain approval of the final site plan by the site plan agent prior to cornrnencing the use," * Consider regrrinng that conlitionv be sate f ed before the application fora needed approval is mbrmitderk When a perrnittee requires additional approvals in the process, such as a site plan, there may be sonic conditions,where it is best to require that a condition be satisfied before the permittee even applies for the site plan rather than some later point in the process, such as priox to issuance of a certificate of occupancy. a Be mr ai, that nferenced decutmetrtr areprnper# rdent,&J References to plats or plans should identify the title, last revision, and the entity preparing the plat or plan. References to ordinances should be iden.dfied by section number and include language such as "as the section was in effect on (date of special use permit]." References to letters, memos, staff reports, and similar documents should clearly identify the recipient, the author, and the date. 12-640 Endure that the conditionn matte sense Once a condition has been put to waiting, the locality's staff must make certain that it is understandable, unamWguous, and enforceable-, ® Retiew draft conditions wink a critical eye: The locality's pla net must ignore lus or her insider's understanding of the application and put himself in the position of a r+eada who knows nothing about the project and: (1) ask whether the proposed conditions are clear, concise, and comprehensive in a way that a future reader will easily understand; (2) drop all assumptions and preconceived notions and be critical; (3) identify the ambiguities and eliminate them; (4) identify all superfluous text and eliminate in; and (5) ask whether each condition would make sense to somebody ten years from now. - r Have a peer revim the cor0 ions The planner should ask others not directly involved with the application to review the conditions, It is important to have someone without an insider's knowledge of the application to s4e if he or site can understand the conditions and identify ambiguities. All appropriate departments r-Wew the mii4h`o=1he planner must ensure that all departments and the .locality's attoxaaey review and comment on the conditions. Because the zoning admiraistntor will have the task of enforcing the conditions, be certain that the zoning administrator has the opportunity to provide comments as to not only the language, but the subject matter (e.g., a condition that restricts a restaurant use to between the 12-9 Thr Atbainadc Canty 1-4s:t 1)se.tAW rJandbvvk Kwnptnu/Jame 2017 hours of 5:00 a -in, and 1,00 am. mayrequire a zoning inspector to be in the field betweesx 1-.00 a.m, and 5:00 a.m. if'the hours of operation become an enforcement issue). 0 -. Mad) copies of t0oren rd t galafienp Zoning regulations referenced in a condition should be attached so that there is no question about the identified regulation. 12-780 Comideration of a special use pewit application; reasonable and unwasonable gwun& on which to basin a decision A decision on an Application for a special use permit is a legislative act and, as such, the governing body or the B A has wide latitude in making a decision. The cases discussed below discuss reasonable and unreasonable grounds on which to base a derision. 12-710 Reasonable grounds to deny a speciA use permit The decisions to deny a special use permit is ,reasonable if the landowner fails to meet all of the requirements of the zoning ordinance for the granting of a permit. Coaanty of L awo4& v. Coxvardbr, 239 Va, 522, 391 S.E.2d 267 (1990), discussed below. Adverse impacts on the character of the neighborhood resulting from a proposed use are a common reason to deny a special use permit. County Board of.�rlangton Count' t, Bradic, 237 Va. 221, 377 S.E.2d 368 (1989), di emssed below. Even if the landowner satisfies all of the technical requirements for the issuance of the special use permit, the decision -making body nonetheless retains discretion to approve or deny the permit. Brrafis, stpra. A "ciai use permit also may be deemed because the proposed use is inconsistent with the comprehensive plan. Natiortall lerxaorual Park, Inc, P. Barrie! of Zsrtirrg 1ppera,& of Frai?*v Coaany, 232 Va. 89, 348 S.E.2d 248 (1986). 'Me decision -matter also should consider the factors delineated in Virginia Code § 15.2-2284. In .Pond of Supav *ors of P,"kiggbaw County P. S6ickley, 263 Va. 1, 556 SE. 2d 748 (2002), the board of suer M sors denied a special use permit that would have allowed the applicant to raise and release game birds on his firm, The board was concerned about the rids posed by these birds carrying contagious diseases and transmitting therm to poultry. Tu what boiled down to a battle of conflicting expert witnesses, the Virginia. Supreme Court held that the board's denial of the specW use permit was proper because its evidence demonstrated a "sigtxificant risk"' to poultry from the release of pen -raised game birds, and that this evidence was amply sufficient to make that issue fairly debatable. In Board of Srgrvisots of Fzdl f" Coarny v, Robeafron, 266 Va. 525, 587 S.E-+.2d 570 (2003), the board of supervisors denied a special exception that would have allowed the applicant to construct three houses within a 200-foot setback on his property. The applicant was required to submit a study addressing pr�n� jeaed noise levels ov projected traffic. The purpose for the study was to identify impacts and hoar to address them. The applicant's acoustical engineer based his conclusions on a noise study performed int 1997, but the study £ailed to address projected (future) noise levels. As a zesubt the applicant's proposed conditions failed to include measures to $educe exterior noise on the property. The county's acoustical engineer analyzed fixture noise levels and concluded that on some parts of the applicant's property, future noise levels would exceed those provided in the comprehensive plan by 2010. Not surprisingly, the Virginia Supreme Court found sufficient evidence of reasonableness to make the board's denial of the special use petaait fairly debatable. ;.: ..AY."7. * The landowner ails to ,Meet all of die requirements for the granting of the permit; even if all of the requirements satisfied, the decision-ma[cec retains authority to deny the pea -nit if sound zoatng pttinciples justify the derision. * The proposed use is inconsistent with the comprehemive plan. The proposed use would have adverse impacts on the character of the neighborhood, ® The proposed use would have adverse impacts on roads or create a hazardous traffic situation. a The proposed use would have an adverse impact on the Ia Cowanfin, one of the county's prerequisites to obtaining a special use permit for two boathouses was the 12-10 The Alb maxlc County LAM Uk law Ha &W, T€ansptner/June 2017 issuance of a certificate of occupancy for the structures. Since the certificates had not beet, issued, the Virginia Supreme Court concluded that the board had established a reasonable basis to justify its denial of the permit. In Bratic, the landowner claimed that he had satisfied'all of the technical requirements fax the granting of a special use permit to allow a two-family dwelling on his property and, therefore, the county board could not deny his application. The Virginia Supreme Court rejected this argument, stating that a governing body "is not stripped of all discretion, in the issuance of a use permit merely upon a showing that the technical requirer,aents of a ;coning ordinance have been :met." Braden 237 Va. at 226, 377 S.fs.2d at 370 (1989). In reaching that decision, the Court emphasized the legislative nature of special use permits, The Court found that even if the county's technical requirements were satisfied, the board's denial was supported by probative evidence that the area in question in the interior of a neighborhood was predominantly single family, though there was a rnix of single fancily, two-family, triplexes, and even commercial, on the edge. The board's evidence also explained that the area in question was "fragile," meaning that it was subject to change, because of requests for two-family dwellings, In C-AH Holdings L.LC v, Cii�, Council of the City ol'Chesapeake, 89 Va. Cir. 389 (2014), the trial court upheld the city council's denial of a conditional use permit for a car wash even though the ciVs planning staff and planning commission recommended approval, and the applicant's noise expert stated that the car wash could comply with the city's noise regulations, The trial court held that the city council based its decision on the conclusion that the proposed use was incompatible with the nearby residential neighborhoods. In Gittirn v. Board of Zoning Appeals, 55 Va. Cit. 495 (2000), a neighbor's testimony that a proposed playground structure was an "eyesore" that detracted from the value of her property, and that a realtor had told her that the existence of the structure would affect the marketability of her home, was sufficient for the circuit court to sustain the BZA's denial of a special use permit. In order to grant the permit, the BZA would have had to fund that the structure would have had no detrimental iu,pact on other properties in tine immediate vicinity. In Ln re HwYey, 2001 Va. Cir, LEXIS 64, 2001 WL 543793 (2001), the circuit court held that the BZA properly denied the applicants' special use per7trit for a home business on the ground that the proposed use would be disruptive to a low density residential neighborhood. The home business was a commercial label -printing business with six employees that produced between 100,000 and 500,000 mailing labels per day on 30 computers. The court held that the BZA properly determined that the home business did not meet the requirements for a special use permit, including the requirement that the use not,'constitute sufficient non-residential activity as might modify or disrupt the predominantly residential character of the area." Adverse impacts on roads resulting from tine proposed use also may be a reasonable basis to deny a special• use Permit. in F'nszeland Orrhard Co. v. Warren CormD� 61 Va. Cir. 548 (2001), the circuit court upheld the board of supervisors' denial of a special use permit. The circuit court held that the fact that the applicant obtained. VDOT approval of its entrances onto a public road did not preclude the board from exercising its legislative judgment in determining that the proposed use of the road Nvould be "hazardous or in conflict with the existing and anticipated traffic in the area," one of its criteria for evaluating special use permits. The court noted that the board received extensive public input at the public hearings. Similarly, in Heater r. 11Wamen Caring Board ol'Supovuors, 59 Va. Cir. 487 (1995), the circuit court upheld the board of supervisors' denial of a special use permit for a small subdivision in an agricultural zoning district on the ground that the proposed use would be hazardous or in conflict with the existing and anticipated traffic in the area. The fact that the applicant had obtained VDOT approval for the proposed entrances onto a public street because they met the minimum standards for sight distance did not preclude the board from exercising its legislative judgment. 12;-720 Unreasonable gtounds to deny a special use permit The denial of a special use permit will be reversed if the governing body or BZA ignores its standards and then fails to present any evidence to justify its decision. In Daniel t, Zotritg Appeab Board f Greene County, 30 Va. Cir. 312 (1993), the circuit court reversed the 117A's denial of a special use permit for a mobile home park where the applicant produced evidence that the county's applicable standards were satisfied and the county presented virtually no evidence and failed to demonstrate that the BZA's decision was consistent with the applicable standards. 12-11 The Alhemprre County land Use Lair E badbeuk rCslmptncr/{une �17 invalid, explaining that not only was the use not alloyed by permit but also that the use would cteate noise, smoke, particulate matter, and the possibility of spontaneous combustion that was incompatible with the sutroundiug residential and business properties, and that the proposed industrial use in an a0cultuxal district was surround be single-famUy .residential properties, muld-family presidential properties, businesses and a resort. The court concluded by stating that "[r]easomble minds cannot differ that dais is inappropriate." In morn a Board of ZonhgAppeais, 91 Va. Cir, 391 (2015), the trial court invalidated the BZA's approval of a special exception pertaining to setbacks because the board failed to make the requited findings. The zoning ordinance required that "the board shall be sate fled' that, among other things, "the departure from the applicable yard and/or lot coverage; requirements is the miairramv twessay to accon=odate the i4atended purpose of the dwelling's (italics in original). Rather than adhere to the standard Ri the zoning otdinance, the BZA based its decision on the fact that the city's commission of architectural review had approved the project. VIM Appeals of decisions to dw circuit court Decisions to grant or deny a special use permit may be appealed to the circuit court. 12-810 T'i el ess, stasnding, and compliance with applicable zoning regulations A person aggrieved by a decision of the governing body may appeal the decision to the circuit court within 30 days. Virghda Code f 15.2 2285'(f). A person aggrieved by a decision of the B2 A, or any aggrieved taxpayer or any officer, department, board or bateau of the locality, may appeal the BZA's decision to the circuit court by filing a petition for writ of certiorari within 30 days. ViiXhvia Code 1 1 S 2 2314 Person*; challera&g a decision as a person aggrieved roust allege that they are aggrieved within the meaning of the Virginia Supreme Court's decision in Friends of She Rappabanarack v. Caroline Coarrliy, 2$6 Va. 38, 743 S.E.2d 142 (2013). Once timeliness and standing are addressed, the next issue is whether the decision was made in compliance with the applicable zoning regulations. If the decision was made in violation of the zoning regulations (eg, these was an express prexequisite for eligibility to obtain the permit, such as having a specific pre-existing underlying zoning designation), the action will be found to be arbitxary and capricious and not fairly debatable, thereby rendering the decision void and of no effect Newberry Station HomeorvmaAuoda&n a Board of Srapemisors ofFartfax C ,limy, 285 Va. 604, 740 S.E.2d 548 (2013), quoting Berkey P. County Board ofAPAggoo Coun#, 272 Va. 369, 376, 634. S.E.2d 352, 356 (2006), 12-820 Evaluating a special use permit decision undet the fair debatable test If it is shown that the decision was made in compliance with the applicable zoning regulations, the decision to grant or deny a special, use permit is valid if the decision is rrasonabk, i.e., whetherthem is any evidence in the record sufficiently probative to raa&e a fairly debatable issue of the decision to approve or deny a special use permit. Newberry Staiion Homm merr.Assodation v. Board of Supervisors of Frairfav Couttly, 285 Va. 604, 740 S.E.2d 548 (2013) (upholding approval of a spacial. exception for a transit authority taus maintenance facility every though, among other arguments, the applicant failed to submit a list of hazardous or toxic substances as required by the county's application requirements; the zoning regulations did not require the board to consider hazardous or toxic substances when considering a special. exception); Board of Srspm*ois of Rockinghram Gun# v. StAekley, 263 VaA, 556 S.E.2d 748 (2002) (upholding denial of special use permit), followed in Board of Sasrvlrars ofFair Cmniy u. Robertson, 266 Va. 525, 587 S.E.2d 570 (2003) (upholding dental of special exception); CAH.HoIdlrgs 11..0 P. City Council of the Q* of Cbesapeake, 89 Va. Cat. 389 (2014) (upholding denial of conditional use permit for it car wash even though the city's planning staff and planning commission recommended approval, and the applicant's noise expect stated that the cat wash could comply with the city's noise regulations, where the city council based its decision on the concltasion that the proposed use was incompatible with the nearby residential neighborhoods). This standard applies even if an applicant has produced evidence that a denial was unreasonable. Ro6vrfron, .stun. 12-14 The Affir aadc Coxmty land Use taw Handbook Kampwe-r/June 2017 As applied to a denied special use permit, the courts will assume that the request for the special use permit is an appropriate use of the property and that the denial of the application is probative evidence of unreasonableness. Board of Srrpen*arx of Fair County P. Robertson, 266 Va. 525, 587 S.E.2d 570 (2003), County of Laveastsr P. Ctmardin, 239 Va. 522, 591 S.E.2d 267 (1990); County.Board of Arlington County P. Bmtk, 237 Va. 221, 377 S.E.2d 368 (1989)_ At that point, "the dispositive inquiry is whether the [locality] produced sufficient evidence of reasonableness" to make the governing body's denial of the permit fairly debatable. Roberxson, 266 Va. at 533-534, 587 REM at 576; Cowarrlin, supra; Bratie, sxpra. The Fairly debatable test should be relatively easy to satisfy since the determination is not whether the applicant or the locality had more evidence supporting its position, but simply whether the locality's decision was based on probative etidence. It is critical, therefore, that the Iegislative record contain evidence supporting the decision, and that the decision be based on probative evidence rather than opinion, fears, desires, speculation or conjecture. 12-15 The Albemarle Caunny Land Use law Handbook kampmer/f une 2A117 Page I or4 Page 2 or 4 Frail MusAt®aaLcom To: d'avldastonar €,g;gmail.wm CC: bbitz®aibemade.oig, uiwcrozQaeLcorn, crutchfieldjk@gmaifcom, emailek@albemarlemil Sent: 11117f2M7 12:14. 13 P.M. Eastern Standard Time Subl'. Re: Agenda - Crazel CAC Meeting Wed Nov 15, Follow Up Information Dave - I wanted to thank you for providing the opportunity to present the infoniiallon about the pending application to amend the Re-Slore'N Station Special use Permit conditions 415 & 48 to the CCAC last night. I have always made it a high priority 10 dedicate Whatever time necessary to work with neighbors, listen and make adjustments to the extent possible and reasonable when involved with any land development project. I did it when building schools for Ablamade County and any development since that time. Most feedback is helpful to improve the design details for the property owner of the development property and the neighboring property owners, At the CCAC meeting since the Special Use Pemut "use' is well water and there is no site plan changes proposed, I focused on the water usage as the AC Land Use Handbook is clear and the revised conditions must be evaluated on that basis. I didn't present any Information about [he significant input and changes incorporated as a result of numerous meetings with neighbors and input received from staff, neighbors, ARB, PC and Beard members throughout the process covering the past years. During the process prior to construction, the majority of revisions to the site plan design resulted from neighbor & public input. I regret this historywas left out. I am unable to just walk away from the CCAC meeting and leave out the significant history showing the evolution o€the site layout over the duration of this process. A few Individuals seemed intent that lack of addresses neighbor concems should be reason to voice on support for the current Application. Kthe CCAC membeis IWI lake a bit of time to review the history, it hopeklfty lvdl provide some understanding ofhory much etfod was dediealed on both sides to nvrking with the neighbors. I have attached [he RS Time Line which started in 2009. 1 have boxed the events associated with specific Input from all parties. Here is a summary of some of the most notable interaction with neighbors: 1. Initial Site Plan submitted in 2008-2010-After meaffng willi the neighbors and heading input at the ARB meeting: - The site layout was totally re-desiuned to move the building from the east edge close to Free Town Lane & closer to RT250 to away from Free Town at central location. This was done to the extent possible respond to those neighbors evenlhough the setbackwas less along Free Town Lane and there is no buffer strip required along that side. - A buffer was created - as the vegetative strip along Free Town Lane was changed from being cleared of trees to preserving the existing trees (this is not a required buffer strip as vie truck storage yard Is also zoned HC). Initial Layout Is included in the attachment. Friday, November 17, 2017 AOL: Alussu Page 3 of 4 rather than to RS, Regardless, the site plan was revised to cut off the pavement by approx. 40ft to create a distance of 9511. The total distance from rearcanopy to closest of the 5 neighbors that expressed concern is 29511 and ranges up to l0 4790. Since the zoning required bldg set back is 5011 and this Is approx doubled - this was voluntary. The store building Is 185ft from rear property line. So double the setback to the canopy and almost 4 times the required set back to the main bldg exists today. This is greater than required even for industrial use. This was done as Ms. Mallock asked for the benefit of the neighbors at the rear, 5. Last year12016 when Phase It was in process - I met with Ms. HaskinslMr. Crutchfield at school then back at their house. Concerns were: -Wanted to purchase a strip of land off the RS parcel where their driveway is located. (RS's water usage Is calculated on acreage so this was not possible) - Wanted the Rs owner to fix the drainage culvert where driveway lums West. (Storm water runoff does not come from RS) - The pole light al the rear East side was impacting their view. This last concern was something that could be addressed with site plan revision. To install a shorter pole with shielding and re -use the exisbng pole at the front when Phase II was buill,rReduce [he hours the pale lights operated, and reduce use of the rear pump once the 2 were added under the front canopy with dual fuel. At the public hearing, they spoke in apposition. The BOS did not approve Phase H. These changes were not done. Overall, the neighbor input resulted in changes that were compromises on both sides and all these changes did net relate to the Special Use Permit for water use but did pertain to site plan design. All done voluntarily as they did not relate to ordinance requirements. The revisions were purposeful and all worthwhile to work with the naighbors. Regardless, there was support but not from the neighbors. I don't have an expectation [[let this information will influence the CCAC to change their position but this is part of the public record and worth beilig cansidered. I have worked with the Sprouse family on this project and others. Their family business of convenience store operation experience spans the past 30 some years and Michelle's parents did the same. At this paint, it is 3 generations with their son, Logan, oparating this store, The Sprouses go back several generations of Albemalla County residents. Navigating the development process In Albemarle County Is one of the most complex. If they are not comfortable handling presentationstmeefings and all ilia paperwork involved, this should in no way have negative impact on evaluating any application In process. Actually, consultants & land developers handle all the applications in AC and this is no different. I have many years of experience in the development process, site design, site construction, zoning & special use permits, understanding the rules and which apply in specific circumstances is what I do. We will continue to strive to comply with requirements that are Imposed and hopefully receive relief from conditions that inhibit fair market competition as the water usage has bean proven over a 2 year period to be 414 ofvhat is allowed for this property, This warrants allowing the changes to conditions as requested. 2. Mtg Jars 29,2009 - At Old Trail & Follow up letter from Neighbors dated 213111 - The feedback questions involved asking for more information on the "future" phase as it was into given at the mtg. This into was not hidden or left out- but since it was years in the future - [hare was no substantive Info to provide. 11 was later required County StafflARB that lice future phase notasloulline was to be removed from the site plan so tl was clear that it would net he approved at that time. (note for ARB purposes onlywas not enough) See Attachment for Agenda & follow up letter 3. After SP approval In 2010- During the Site Plan process when the more detailed design was slarled: Mtg with VDOT and neighbors to address the Free Town Lane entrance at RT250. - Working with VDOT & neighbors- VDOT pushed to consolidate the entrances. I actually defended ilia desires of Ilia neighbors because it was not within their power to force their entrance to be removed. Two options were offered and I sent a letter to each asking for feedback.. Four(4) property owners ware not supportive to consolidate and provide access across RS so extending the decel lane past the RS entrance was a compromise, , See 2nd Attachment- FreeTown-PropOwnarREsponses fulfills - Regardless, an access easement to serve Free Town purposes was recorded in the land records and added to the site plan so a future connection was left open. (See Final site plan layout In attachment) 3. Mig With Neighbors an West side: I sent a letter to request a meeting with 2 property owners on the other side (behind Moose Lodge) as It seemed the Free Town residents had lots of Input but Ms. Haskins and Me Whiting had a different view point. (Mr. Crutchfield was not a property owner at that lime). - We mat on Saturday, Feb 19, 2011 - They preferred a privacy fence instead of trees and fence was added at edge of pavement to better address the visual screen at t the higher grade instead of at the property line which was too low. In the follow up letter, the board on board fence was proposed and later approved by ARB. This style is most expensive but both sides look similar instead of looking at the backside of boards. See Attachment- Rs.History includes Letter to HaskinsiWhiting 4. Ms. Malfeck mtglmare neighbor Input: Ms. Matlack pushed for more changes to address the concerns of neighbors. This resulted In reducing the smote of the paved area, bidg changes, Increased huffier at the rear by taking away paved area, delete 1 island under rear canopy, reduce scalelsize of rear canopy, move recyclefdumpsters away from Free Town Lane, (Site plan BEFORE revision included in attachment and Final Site Plan) Deleting island under rearcanopy was to reduce se€viceMewfnotse at the rear canopy and Increase clearance to homes. It was a compromise. I charted the home locations of the 5 property owners that had expressed specific concerns to get an idea of distance from home to rear property line. (Chart included in attachment) 7 homes are accessed via Free Town Lane. Only 2 parcels actually abut the RS parcel. There are 2 homes behind Moose LodgelPro-Renala and 1 of these touch the comer of RS parcel. There are also a few vacant parcels served by Free Town Lane. The 200ft clearance to property line Is the blue tine, The distances to home location ranges from 200ft to 384ft, Acouple homes are closer to and down gradient of commercial properties to the east Best Regards - Jo Friday, November 17, 2017 AOL_ Atusxa If mere is any questions I can answer or infomia[lon I can provide, please advise. Friday, November 17, 2017 AOL: Mosxit I Re-Store'N Station Time Line far HC Commercial Zoned Parcel I found camp Lire inside where people slept there. Did not know water lap was lied to ext. bldg. 11/01/07 Request for Jurisdictional Area from Water Only to Existing Bldg to Water Only 04/02/08 BOB Mtg for Jurisdictional Area request - BOS decided to not take to Public Hearing. Mar to Aug 20( Considered approx. 6 layouts, Did July Pre -Application Mtg, Mtg VOOT, Revised Site Layout 3 X 09101108 RS Site Plan Submitted - SITE DESIGN Reduced to 6KSF STORE W1OFFICE ABOVEINE CORNER OF SITE 10103/08 Tier III Groundwater Study to County - by Nick Evans Phd,CPG 11/04/08 Staff Comments - FROM WATER RESOURCE MGR1 J. Rubenstein 'EXCELLENT Tier III Groundwater Assess and CONFIRMED THAT NO SPECIAL USE PERMIT IS REQUIRED. (AFTER SUB TO HEALTH DEPT T00) area was reserved for future uses. which equates to 847 GPD/acre on 1.18 acre. NO meter- No flow restriction device 12/10/08 Water Resource Mgr - Josh Rubenstein - request for more water information (after neighbors input) 12/25/08 CCAC resolution to not support Yancey and not support Re-Store'N Station 01/15/09 ZONING Determination - R, Hitltlins Special Use Required 04/13/09 Deferred BZA appeal of 111512009 Determination (intention to work out new layout) 05/05/09 Jo Email to R. Higgins about intention to reduce stare size & major site layout revision 10123109 Major Site Plan change to Preliminary Site Plan -Moved Bldg, downsized canopies, downsized bldg. 11/17109 ZONING Determination - R. Higgins Special Use Required eventhough all changes made 12/01/09 Preliminary Site Plan met staff comments except SUP - approved except for SUP & PC 01/20/10 Tier III Groundwater Study -letter amendment u4u3lw ms. Josepn letter to ru r:juw 5LA - Hpolli me same Imo as Loprlst -i'It l rluZ5 & 4131U`J letters 03/24/10 ZONING Determination - "domestic waste" and "by -right use" based upon 3131/09 Determination rear 06/01/10 BZA upheld 3124 Zoning Determination 06108/10 PC Mtg re: Site waiver, Site plan, & Spec. Use - voted 4 to 2 to recommend denial 06/30/10 Attorney ZOBRIST riled appeal to Circuit Court of BZA decision 6/112010 (Zobrist represents Mr. SuH) 07/23/10 RESTRICTED Engineered Water system design submitted -reviewed by Engr, Zoning and Dep. Attorney 08119/10 ZONING Determination - R,Higgins NO SPEC Use Required (as flow restriction is shown on Site Plan) 08/24/10 PC Mtg - where Mary Rice spoke under "matters not on the agenda" about R. Higgins 080/10 Attorney ZOBRIST letter for BOS to use Influence Aegal) filing against County and Staff (threaten tone) 08I27110 ZONING Determination -withdrawn -Back on track for Spec Permit on 03/14/11 AP2011-00002 Appeal to BZA by opposer 05/03/11 BZA UPHELD ZONING DETERMINATION 06/08/11 BZA DECISION APPEALED TO COURT BY OPPONENTS (Suh V.AIb.Co) 08/31/11 ARB Certificate of Appropriateness Issued 07113112 Final Site Plan approved 12/17/12 Court Ruled that Second Floor office of 3000sf was not allowed so only 1000sf (could be built) 03120113 FINAL SITE PLAN APPROVED AGAIN WITH OFFICE DECREASED TO 1000SF SEPT 2014 -STORE OPERATIONAL 10/01/14 PRE -APPLICATION MTG STAFF - ZONING ADVISED 1 YEAR OF WATER DATA REQUIRED 08105115 BOARD ACTION TO APPROVE SP2015-00012 Mechunr's Trestle to allow 5,000GPD which equates to 3,597 GPD/Acres on 1.39 acres -Only 1 condition - install meter, 09/01/15 MANDATORY PRE-APPLICAION MTG FOR SP AMENDMENT (WITH 1 YR DATA) 12/04/15 SP AMENDMENT SUBMITTED & SP FOR DRIVE THRU (Drive thru revised & SP no longer reauirei 02/19/16 Requested Letter of Determination - Gas Pumps are not restricted by SP conditions 02/25/16 Notice of Violation - #5 - Store Hours limit - imposed on gas pumps & #8 - Overnight parking 3lx12 Determination - pumps are considered part of store operation (did not appeal as New App pi 09/14116 BOB - Motion to deny Failed 3.3 - deferred to Oct 12th for action item 10112/16 BOB - Motion to deny Passed 6.0 (based upon non -water Issues & Idea that more water will be requested of future Board) RE-STORE'N STATION Meeting 1 — 29 — 09 6:30 pm �Y� Guide 1. Overview of Site Plan & Building Elevations a. Parcel boundary, septic fields b. Lighting — locations c. Building location — Entrance location d. Large Canopy -- 5 islands e. Small Canopy - 3 islands f. Building Exterior Design Elevations g. Signage — monument, wall signs 2. Proposed Items to Address how to mitigate some of the negative affect to adjacent properties at rear a. Building footprint adjustment (ARB requested) b. Large Canopy -- redesign, reduce islands down to 3 c. Small Canopy -- redesign, reduce islands down to 2 d. Fence -- Not required but discuss if desirable, type 9f fence, color, and potential locations e. Landscaping & Lighting — south & west buffer & buffer plantings and proposed east evergreen plantings — discuss if desirable f. Lighting -- fixtures g. Storm water run off -- Short term -- sediment control & proposed design to eliminate an above ground sw detention basin. 3. Process �& Timing -- a. ARB and PC b. Site Plan 4. OTHER ITEMS - QUESTIONS February 3, 2W9 items boxed confitms that the information about Ms 10 Higgins future phase was presented. Since early in Uw Project Development Limited LC process - the future phase was not fully designed 104 Ann Marie Blvd or decided but that it was always intended was Waynesboro. Virokia 22980 fulty drsroged. cr Planning Commission. Board of Supervisors, ARS Thank you for hosting an information session on January 29°% 2009 at Old Trail to review "Re Store'n Station" The following points were covered during the tneeting: 1. ConvenizIca(groceayldeli store — 6.000 sq & € 5 seats — ao commitment to what it will be exactly 2. Upstaits office space— 1,0W sq it 3 "StarbitOz type•' co€fee Isar 4. 58 parking gmees 5. 7 pumps, no change in pumps due In shorter 6. A second litti€ding in the f sum parallel to the existing building on the west aide of the site 7, A third building situated to the rear of the site directly next to Freetown property (Off=ed only alter questioned) 8. Water requirement for the total site to be less than 1,600 gallons per day (4 % 4N1 9. All lighting to be "bark shy' 10. Underground storm water manage system —ono atu or calculations offuod, document fmm supplier of Breed 11. Sprousa*s willittgrtess to per some sort of fm c in the back pressed location closest to proposedstare with etas[ of futum dtvoloptrtent this will be rersoved. 12. issue of type of trees diacuwed evergreen versus deciduous 7 ne community of Fredcwn was of%tvid for consideration point 2d and 2e, att=hed and idtati5ed above as 11. told 12. until the site use and far more specific. phase we availmble, feedback is iaviraeticaf. The members would appreciate to have another session once this detail is available. The following points were not answered: 1. Hours ofep rabon? 2. M:;e of demand specific trim for interior layout and co==ionv d eiiJmstauratrtlstart7 3. With 7 pumps and 58 packing spaces, what will be the auto throughput mptemtion c, uw ofr' =W 3� l kiirM? S. Willd level afttoiv WW be created by deli=y tracks and overnight parked trsctor- trailers7 Will overnight parking of trsctortrailcm be allowed? 6. Ownership — who will be the operamr, Jeff Sprouse or someone cite? 7. D= the ambitectam, since it is in the eninince corridor to Charlottesville, meet with the requirtsncnts of the ARB? 8. Arc Thee outsmnding issues to be resolved with the planning eormtitsion, the A&B or Other 90verr=Kntel agencies for the approval of this project? It is the request ofthe commtm4ty to meet again once the open questions can be answered and when docomtxttanon and specific detail for the project can be offered. The eottttmunity is in the proccsn of eoiiecting wtcgncUenrive information on comparsbles to demonstrate that the site as proposed requires significantly more water and sewer [Stan the mquirernetts pmjmted by the Stom*n Station proposal. The corrmnunityintends to share this with the County staff as scan as this =dy is complete. 'Fite c ofnrmnnity is totally against the project in the scale proposed and with the lack of detail of the apwific use of the facility and the lack of detail on the use of the all= space on the site. We look forward to condititing the dialogue to fund a solution that works for the Sp== family and the cotrtmustity. Sisterly, Frcztown ld ' Association & Yancy MillsNeighbors Clow_ Virginia Project Deve!opment LLC February 11, 2011 Ms. Erica Haskins 6133 Rockfish Gap Tumpike Crozet. VA 22932 RE: Property TM 55-207 Ms. Marilyn Whiting P. O. Box 577 Crozet, VA 22932 RE: Property TM 55 -107A Dear Ms. Haskins and Ms. Whiting: We didn't get an opportunity, to meet but I believe one or both of you may have attended the public meeting at the County Office Building on the Highway Commercial property, TM 558-1, owned by feffries II LLC, thatfront . on RT 250 that isbeing developed as Re-Store'N Station. tam the Project Manager on this project. I believe you expressed concern about some interference with your erdsting driveway or how It maybe Impacted by the development plan for Re-Store'N Station. Since yourconcems and those of your adjacent neighbor may not be completely the same as the property owners located more to the Easton Free Town Lane, I would like to meet with you directly to show you the development plan and explain what measures have been taken that pertain to your specific interests. We can go overary questions that you may have at tins time or how things will be handled when the construction phase buns. Please all meat 326 -0334 and we can set a time and place to meet at your comenience, l will be happy to come to your property or possibly meet you in Crozet over a cup of lea. I lookforward to hearing from you. Sincerely, toI.Sint, Project Manager Project Development LLC 2564 Mt Toney Rd., Lyndhurst VA 22952 434 - 326 - 11334 musmtrtvaol.com Page i Protect Development LLC February 21, 2011 Ms. Erica Haskins 6133 Rockfth Gap Turnpike Crozet, VA 22932 RE: Property TM 55-107 Ms. Marilyn Whiting P. O. Boa S77 Crozet, VA 22932 RE: Property TM 55 - 107A Dear Ms. Haskins and Ms. Whiting Thanks for taking the time to meet with me on Saturday. When we talked about the privacy fence, you wanted to know what it will look like, if you Soto hirty11-ood1hadoiencing,com,there is a picture of the exact style and color that was submitted to ARB. The Color Is "rustic cedar and style is shadowbox or 'board -on -board" which is attractive from both skies. I printed that picture from the web site and enclosed it with this letter. This composite board Product is intended to provide a maintenance free fence that will not deteriorate or need painting to keep it kwking good. It is our hope that ARB will approve the color selection and style. As we discussed, you indicated that you would prefer the Eft privacy fence be installed along the left side of your driveway rather than planting trees. To make your preference known, Please contact Summer Frederick at the County Planning Deyartment. Her number is 2965932 extension 3565 or email sfrederickr9o!{Zrmgri M, You can also call the County at 296-5832 and ask for David Benish. tie may be able to talk with you about what Is happening with the Yancey Industrial Park application. tf access to public water and public sewer In the future is important to you for your property, David Is the person to ask that your property be included in the 'Growth Area'. David indicated tome that the Moose Lodge has made a similar request. If you have any other concerns at questions, please feet free to call me. Sincerely, .�� / / r ✓ In Higgins, Project Manager Project Development LLC 2564 Mt'Torrey Rd., Lvndhurst, VA Z2952 434 - 326 - 0334 Page 1 i"of �Mrr....+r.w Mr�u •, .,.. h 'l IAA/ BROV�VVIEEE 6q MARKET h ti 1{{g l/l ��.�• • � � 6984 � 9 EXXON 604 5995 -six P is Jul T .-+zs R U 618, �, RE—STOREN C 4� ,6,35 SF .' SW LQ N K S Uo,r RODV SHOP HOP 1 4 413 �9� f 1 430 316 FT 61, 3S0FT }nrA1 234 FT 4't 7 P I 300E .1-,�► 374 ) F r' { , r 1 f �► C T -4a s-o e roiwiu a� Am i n A xmx m m i A N D n —1 s Lm D � cn n m o of o z m=Z z n j i > � acEn n9N M Z a _ Z a 08; 09 04 0 .or -A 3-rrA oxvarda 1 1 ig- N0I°5556"E Igq.gqft N00°4i 3cf E 2T.86ft j--��_ I -- . SITE PLAN LAYOUT BEFORE REVISED F 2010 Malleck mtgINEIGHBOR Input 1 ISLAND UNDER REAR CANOPY -S ED CANOPY PAVEMENT AREA TO PROVIDEFER AT REAR��� RELOCATED RECYCLE/ DUMPSTERS AWAY FROM FREE TQWN LANE TO BEHIND BLDG mg p o s � 43 Z x tk •`�. �. m o'� .. a'O � ..". 9N is i i �RS Ka 70 J of I "< I 1 7:7 y rn o SHEET FROM APPROVED SITE PLAN SHOWING REAR CANOPY REDUCED, ISLAND REMOVED, DUMPDUMPSTERS RELOCATED, �. -�--- ♦� .�lll►ti �\� �' ���:,�.-•ter♦ •a`<'t��'�.%�1�� CONNECT• FREE TOWN•'