2013-09-11September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
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An adjourned meeting and a regular meeting of the Board of Supervisors of Albemarle County,
Virginia, was held on September 11, 2013, Lane Auditorium, County Office Building, McIntire Road,
Charlottesville, Virginia. The adjourned meeting was held at 3:30 p.m., and was adjourned from
September 4, 2013. The regular meeting was held at 6:00 p.m.
PRESENT: Mr. Kenneth C. Boyd, Mr. William B. Craddock (arrived at 4:11 p.m.), Ms. Ann Mallek,
Mr. Dennis S. Rooker, Mr. Duane E. Snow and Mr. Rodney S. Thomas.
ABSENT: None.
OFFICERS PRESENT: County Executive, Thomas C. Foley, County Attorney, Larry W. Davis,
Director of Planning, V. Wayne Cilimberg, Clerk, Ella W. Jordan, and Senior Deputy Clerk, Travis O.
Morris.
Agenda Item No. 1. The meeting was called to order at 3:38 p.m., by the Chair, Ms. Mallek.
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Agenda Item No. 2. Work Session: CPA-2013-01. Comprehensive Plan Update.
Ms. Elaine Echols, Principal Planner, said the Board last met on August 14th and talked about
how it wanted to review the Comprehensive Plan with staff, however, at that time, the Planning
Commission had not finished its recommendation. She reported that the Commission finished its
recommendation on August 27th and staff provided the same kinds of changes which were identified at
the earlier meetings. Ms. Echols said that, when they put the summary together with only goals,
objectives and strategies, they found that some of the strategies couldn’t stand by themselves without the
text – so the Planning Commission asked staff to clarify those strategies so the Board would have a
clearer strategy and those items could stand alone. She stated that, since that time, staff has updated the
first three chapters of the plan and have provided a side by side comparison with both old and new
language for the goals, objectives and strategies, and anything else that stood out to staff and the
Commission in the review.
Ms. Echols stated that staff would like to take the Board through two to four chapters at a time
during their reviews, with more time dedicated to the bulkier chapters such as Rural Areas. She said that,
if there’s something in an appendix that relates to the review, staff would also pull that out and go through
it with the Board. Ms. Echols reported that, at this meeting, staff would review the background, values,
vision and growth management chapter, and would stop at the end of each chapter for questions and
discussion. She suggested that, if some chapters take additional time to come to resolution, those
chapters could be moved to the end of the process which would give the Board more opportunity to
concentrate more fully on that topic in particular.
Mr. Boyd said he would like to go through some items individually, such as the Neighborhood
Model, rather than continuing to go back to it as a reference to a comment in one particular section. He
stated that a lot of the comparison information provided is from the appendices, not the chapters, and
asked how staff might handle that process. Ms. Echols explained that staff would bring the appendix into
the discussion, but currently the only appendix that was related to the topic matter was the cash proffer
policy – and staff would plan to go through the appendices for community facilities when they get to that
chapter.
Mr. Boyd asked at what point a discussion on the neighborhood model, as an example, would
occur. Ms. Mallek said it’s been adopted as an ordinance, so the Board wouldn’t change it during this
Comp Plan review.
Mr. Cilimberg clarified that there is the policy language of the Neighborhood Model, then there is
the Neighborhood Model district in the zoning ordinance, and this refers to the policy language.
Mr. Rooker said he didn’t bring his entire book to the meeting because he assumed it would
match up to what the Board would be covering today and said that, if they were going to discuss other
things, he would rather have the book with him.
Mr. Boyd said he didn’t say they necessarily needed to proceed that way, he was simply asking
when they were going to address the policy issues in the appendices. Ms. Echols responded that staff
was planning to go through the Neighborhood Model policy when they get to the development areas
chapter.
Mr. Cilimberg said staff does plan to cover the cash proffer policy today because it is referenced in
Chapter Three.
Ms. Echols noted that the cash proffer policy is in the Development Areas chapter, as well as the
Growth Management chapter appendix.
Ms. Echols also suggested that the Board give staff non-substantive editorial comments anytime,
but the substance comments would be received when they get to those sections.
Mr. Boyd expressed concern that people might only read the summary chapter, and he would like
to make some changes to some of the verbiage. Ms. Mallek said they were going to address it, just not at
this particular meeting.
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Ms. Echols reported that they would review the first three chapters at today’s meeting, noting that
the summary is just goals, objectives and strategies – and they’ve got the plan called the “20-Year Plan,”
along with the appendix. She stated that those three components are really the Comprehensive Plan, and
the appendix has the weight of the plan and includes more of the details that aren’t included in the 20-year
plan bulk document. Ms. Echols said reference documents are not part of the Comp Plan, but were used
to help create it or to clarify parts of the plan.
Ms. Echols said one of the things that’s different about this background chapter from the others is
information on regional planning – not just the Planning District Commission but the other regional
planning groups in which staff participates. Ms. Echols stated that there’s also information on Area A and
B, which they participate in regularly in PACC and PACC-TECH, and this information is now provided in
the Comp Plan in a single place, rather than in the individual Area B plans. She said the map presented is
a new map created by PACC-TECH, taken from other older maps and put together on one page. Ms.
Echols emphasized that this becomes very important with the southern and western neighborhoods, and
the Board would see the map again when it talks about the areas in the County on this map.
Mr. Rooker said it would be helpful to have a north/south indicator and to label at least the major
roads on that map, so people can immediately orient themselves.
Ms. Echols stated that there was a lot of interest and discussion related to the sustainability
accords and, with this particular Comprehensive Plan, staff thought of them as continuing to be important
aspirational principles to the County. She said the existing strategy said “review and support as
appropriate the following Sustainability Council statements of accord,” and while there’s not a huge
difference in that statement, there is a slight difference in how the sustainability accords are addressed.
Ms. Echols said the Livability Project also had a lot of interest early in this process, and both the City and
County Planning Commissions worked together over several months to come up with some joint goals for
the community. She stated that, for each chapter, the relevant parts are noted – the first one dealing with
growth management. Ms. Echols said, as they go through these, if there are issues the Board members
want to discuss about those relevant parts, it would be a good time to bring them up. She said the City
has already adopted their Comp Plan and the pieces that come from it.
Ms. Mallek asked for clarification of the “livability goals.” Ms. Echols explained that staff took each
goal and fit them into the sets of strategies under each chapter, which is why it’s important for the Board to
review them and make sure that it would endorse them. She said this was the work of the individual
Planning Commissioners working together, and then both the City and County commissioners came
together and said both entities wanted to endorse these items and put them in the plan.
Mr. Boyd said the statement in this section, “strive for the size and distribution of human
population” bothers him as far as it being something the County is trying to control, and he suggested
changing it to “housing” or “development” would be more palatable. He also stated that he isn’t sure how
the County could guarantee that everyone has a good-paying job, as he doesn’t see that as a function of
government.
Mr. Rooker said, given what Mr. Boyd just said, he didn’t know what the Economic Vitality Action
Plan is all about then, because that plan exists to help provide good jobs in the community by which
families can live and sustain themselves. He also said the plan points out that these are the 1998
Sustainability Accords as part of the County’s history.
Mr. Boyd said the plan should clearly state that it has nothing to do with the current plan, and is
just historical information.
Ms. Mallek said that it’s in the “Background” chapter, which is essentially the history. She stated
that the second statement, in her interpretation, refers to the growth area and how it’s more efficient for
government to supply services if people are living closer together, which is what the Board has talked
about for a long, long time.
Mr. Thomas said that it sounds to him like the County is trying to control the population.
Mr. Rooker stated that the Board makes decisions all the time that will impact the population, and
it points out their impact on resources but doesn’t try to “control” the population.
Mr. Thomas said that’s how he interprets it.
Ms. Mallek said, in order to encourage more people to live in the growth areas, the County would
try to use capital investments to make those areas agreeable places to live as is possible – and thus make
the area more appealing to people. She stated, unless it shows up as a strategy for implementation, that
kind of statement is offered for historical purposes which is indicative that the community was being
thoughtful. Ms. Mallek said there was a lot of community input into this, and it was not a one-sided effort.
Ms. Echols suggested that, for clarification purposes, staff include a paragraph which explains
what is intended by those particular statements related to the sustainability accords.
Mr. Rooker said some of these things are referenced within the plan, so it seems they should be
altered where they become implementation measures rather than prefacing the historic document with a
paragraph.
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Mr. Boyd said he would be comfortable with staff identifying those statements and taking out
references to them as being part of the strategy.
Mr. Rooker stated that they should just address those things as they appear in each chapter.
Mr. Boyd said it bothers him that the Comp Plan is treated like a “bible” whenever anyone comes
in with an application, citing the Neighborhood Model as an example.
Mr. Rooker said the Board made it clear many times when the Neighborhood Model was voted on
that it was not intended to be the only model for development in the County, that it was a preferred model
for community service areas.
Mr. Boyd said he wants to work on the language so that it’s not a direction to staff which indicated
that, if it doesn’t meet the Neighborhood Model principles, staff is not going to consider it – and if an
applicant is told that, they might not move forward.
Mr. Rooker stated that the Neighborhood Model principles are set out for each development
proposal, and staff says whether or not they’re met – and they may or may not recommend approval,
depending on how those elements fit together. He said there is an application coming before the Board at
this meeting in which the applicant didn’t meet the relegated parking requirement, and sometimes things
don’t fit together neatly. Mr. Rooker emphasized that these are just guidelines.
Mr. Cilimberg stated that the Planning Commission was pretty purposeful with the sustainability
accords in stating that these aren’t goals, objectives and strategies – these were actually adopted a
number of years ago and are described as “aspirational principles” for the County, not a means of
evaluating projects. He said these are essentially guiding principles for the County and City in terms of
how it looks at itself as a community.
Ms. Mallek said it certainly is a list of many of the complex issues the Board has had to face, and
many are contradictory – so all the Board can do is to try to do the best it can.
Mr. Cilimberg stated that the Comp Plan can also bring in conflicting strategies, and ultimately the
decisions are made by the Board based on what it feels is important as various factors are being weighed.
Mr. Thomas asked if consideration of the Sustainability Accords has ever figured into a decision-
making process in the Comp Plan itself. Mr. Cilimberg responded that staff does not actually go back to
the accords when projects are being reviewed and, when staff looks at the Community Development work
program, they rely on the strategies in the plan. He said, when the Board sees development proposals,
staff is using guiding goals, objectives and strategies – and the Neighborhood Model has been important
for development area projects, but staff recognizes that not every principle can be achieved in every case.
Mr. Cilimberg stated that staff has to balance it with the reality of the circumstance.
Mr. Snow suggested that, in the future, the Board just note these types of items as concerns and
then come back to them if they are affecting the rest of the plan, rather than bogging down the process as
it goes along.
Ms. Echols said she would set this item aside and see if the strategies are affected by it, then
come back and see if the Board would like to revisit it.
Mr. Boyd stated that, under the Livability Project goals, the fourth bulleted item under “Economic
Development” which talks about supporting a range of businesses that came from the target market study
also should reference the “job multiplier” factor – with related jobs created along with professional career-
track jobs.
Ms. Mallek said that it should go in the economic vitality chapter in the Comp Plan.
Mr. Rooker agreed that it would be appropriate to put it in that section.
Mr. Cilimberg stated that staff would note it for their discussion during that part of the plan.
Mr. Boyd said he had recalled already discussing “explore the idea of a regional housing
authority,” and thought the Board had already decided it didn’t make any sense to pursue that.
Ms. Echols said both planning commissions had felt it was important it be included in this
document.
Mr. Boyd said he’d like to note that this is a “Planning Commission” report, because it may be in
contrast with the Board’s position.
Ms. Mallek stated that it says at the top of the document, “Livability Project Goals,” and not the
Board’s Comp Plan goals. She said the Board needs to focus on this background chapter as the history
of how the County got to where things are now, and the Comp Plan chapters would be crafted by the
Board.
Ms. Echols said Mr. Boyd’s concerns would come up in the Housing chapter, and there is a
strategy in there – so if the Board doesn’t agree with it, that’s the time to change it. She stated that, if
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there are things that come out of this part of the plan that translate into strategies and the Board disagrees
with those, it would have the opportunity to re-characterize them in the plan for consistency.
Mr. Rooker said staff could include language which says the City of Charlottesville and County of
Albemarle’s planning commissions recommended certain things, rather than implying that it’s somehow
mandatory.
Mr. Cilimberg said that “will be considered” could be an intro, and these items would appear in
different parts of the document as potential strategies for the County to endorse.
Mr. Boyd noted that, under the 20-Year Plan section on natural resource protection, there is text
which states, “scenic, historic and cultural resources represent the highest priorities of the residents’
citizen survey” and, while that is an accurate assessment, it is a bit of a given.
Ms. Mallek said it doesn’t hurt to make that statement and, during the last survey, citizens were
asked if they would spend more money on these issues – and that’s where the majority of them said yes.
Mr. Rooker said the County is actually doing that by implementing granulated carbon for the water
supply.
Ms. Echols reported that the next chapter to discuss was “Values and Vision,” and it includes
items that have come out of plans and surveys conducted over the years. She said these have not
previously been emphasized in the plan on how closely the County is affiliated with the City of
Charlottesville, as people consider this one community. Ms. Echols stated that this issue arose during the
Livability Project process, along with how important individual property rights are – and the Planning
Commission wanted to be sure it was made clear that those were reflected in the County’s values.
Board members mentioned a few suggested language changes to the document.
Ms. Echols stated that the Board may have prepared for today’s review using the older document,
but emphasized that staff would be giving them new pages with corrections reflecting the Planning
Commission’s changes and the edits for the Board to add to their notebooks for more review.
Ms. Echols agreed to add “University of Virginia and other governmental entities” to the statement
regarding economic drivers. Ms. Mallek wanted to ensure that agriculture be included somewhere in the
industry category.
Mr. Cilimberg pointed out that the vision statement is essentially the same vision statement which
the County has for itself, and was one which the Planning Commission felt was important to use as the
lead piece in the Comp Plan – so staff is comprehensive planning from that same vision.
Ms. Mallek pointed out that many counties don’t adopt a vision statement and, at VACo classes, it
is emphasized as being an important part of goal-setting.
Ms. Echols said the next chapter is “Growth Management,” stating that the County has had a
growth management policy for a very long time and was based on the desire to pass down the features
that are important to the community to future generations, and to efficiently expend the taxpayers’ money.
She said that is partly how they set up their growth management policy, sending new development to the
development areas and focusing funding and infrastructure on the development areas, and recognizing a
joint responsibility for funding growth. Ms. Echols said those things come from the existing Comp Plan
and have been re-worded, and offered to share her hard copy with Board members if they needed it.
Ms. Echols said “joint responsibility” refers to the County funding capital improvements, with the
developer also paying for capital improvements through cash proffers. She stated that the Planning
Commission recommended a clarification on how to calculate affordable units in terms of cash proffers: if
developers provide cash in lieu of affordable units, then the developer has to also pay the cash proffer on
those units that aren’t really affordable because they provided cash instead. Ms. Echols said some of the
feedback from the Commission indicated that the plan didn’t provide enough clarity on those
responsibilities, the joint roles of the development community and the public to pay for infrastructure – and
the change made between versions addressed those concerns about providing greater clarity.
Ms. Mallek commented that the shared obligation means not all of the costs are being offset by
proffers, and a considerable amount is being paid for by the general tax revenue.
Ms. Echols confirmed that not all of the costs are being covered by proffers, so the County shares
in those expenses.
Mr. Rooker stated that, if there’s infrastructure for development areas, it’s done for existing
residents, and that should be a shared responsibility – with proffers covering at least some portion of the
increased infrastructure which results from the additional development.
Mr. Boyd said the Fiscal Impact Committee was charged by the Board with looking at that, and
they may have some suggested changes to the proffer policy. He stated that he wasn’t certain when that
committee would be meeting again, and he is waiting for them to call a meeting.
Mr. Foley said staff was planning to address that today.
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Mr. Boyd stated that he is getting a lot of feedback from the development community that the
proffers are the cause of the affordable housing problem, because adding $19,000 per single-family
detached home, etc. is causing developers to do things by-right instead.
Mr. Foley said these are the issues that have been raised, and the question is what group and
process are most appropriate to look at amending that policy – because it wasn’t developed by the Fiscal
Impact Committee, it was developed through roundtables and a committee that had many other people
involved in that process.
Mr. Cilimberg explained that what the Planning Commission did, from a policy standpoint, was to
suggest adjustments to the wording but, if the Board feels that more needs to be addressed regarding the
actual cash proffer policy, that’s a Board decision based on policy considerations that could either be
undertaken with the Comp Plan or separately by staff on a parallel track. He said that’s not really the
Fiscal Impact Committee’s charge, as they’re more involved with calculating what the proffer will be based
on in the policy.
Mr. Boyd said he served on that committee when they enacted the cash proffer policy, and they
calculated the amounts that were recommended back to the Board, and they basically just did the math.
He stated that the problem now seems to be the math, and he wondered if they would want to go back
and evaluate that.
Mr. Rooker said he is fine with the language as it’s included, and one suggested measure of
fairness has been to assess the cash proffer am ount on the existing permitted units under the zoning. He
stated that the question has been raised as to whether the proffer amount should only be assessed on the
increase and, if so, that’s something the Board should consider.
Mr. Boyd stated that he’s concerned about the economics of it, and he’d like to get some
feedback from the development community as to whether they’re avoiding certain projects because the
math won’t work with the proffers.
Ms. Mallek suggested that perhaps the lack of projects with proffers is related to the economic
slowdown, and said that a constituent explained to her that, if the value of the land is $15,000 per unit,
then a $19,000 per unit proffer is too high because it cuts into the ability for someone to develop it. She
said she would like to have more discussion and perhaps a new session of roundtables, parallel to the
Fiscal Impact Committee meetings.
Mr. Rooker said, if you only assess cash proffers on the number of units above existing allowed
zoning, that affects the economics substantially. He said part of rezoning property does create wealth,
and Hunter Craig testified in court that, when the Board approved the Biscuit Run rezoning, the property
made $70 million. Mr. Rooker stated that the cash proffers are intended to recognize the infrastructure
impacts and, with the change, it would only be on the part that created additional value by rezoning.
Mr. Cilimberg stated that, if the Board feels the policy and how the calculations are made need to
be revisited, then it should identify it as a separate item that needs review – and the question is how staff
would proceed with it.
Mr. Foley said there was a broader discussion with different stakeholders around the table when
they looked at this before and, if the Board agrees that proceeding with that on a parallel track with the
Fiscal Impact Committee is the right approach, then staff will come back to the Board with a proposed
process and some alternatives. He stated that the direction needed from the Board is whether the Fiscal
Impact Committee alone should look at this, or whether the issues are broader.
Mr. Boyd stated that the Fiscal Impact Committee has a fairly diverse makeup – with people from
the development community, the environmental community, etc. – and they are probably the ones that
would be invited to a roundtable anyway. He said he would like to see specific numbers as to why it does
or doesn’t work.
Mr. Rooker said the Board needs to be careful about setting policies in boom times and recession
times and, at the time when the proffer policy was adopted, no one seemed to have a problem with cash
proffers.
Mr. Boyd stated that it was uncertain before, and a developer would just come in and get the best
deal possible – and the whole reason the Board went to this policy was for consistency.
Mr. Foley said that it would be helpful for the Board to have the charge of the Fiscal Impact
Committee in front of them, and staff would bring that back to the Board as soon as possible, along with
some other information related to the proffer policy.
Mr. Snow said he would like to talk about strategy 1-A, noting that it had been changed fairly
significantly from the copy he has adding that, over the last year or so, there have been several individuals
who have wanted to have a parent or child live on their property – and he would like to find a way in the
plan to make it easier for something like that to happen.
Mr. Rooker commented that that’s a rural areas strategy.
Ms. Echols said that it’s in the housing section.
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Mr. Cilimberg said that one of the things in the housing section that they’ll address is the
“accessory apartment” that’s not in the unit, but is a separate unit.
Mr. Snow said he would like to cover the situation where someone has three or four acres but no
development rights, and would like to have a family member there.
Ms. Mallek clarified that this would be a situation where it can’t be sold separately once it’s
established.
Mr. Snow agreed, stating that this would be a huge factor as the population continues to age.
Ms. Echols said staff would set it aside for discussion.
Mr. Boyd stated that page 3.3 talks about “limited service delivery,” which is also addressed in
overall strategy. He pointed out that the school system isn’t getting that point because there is a huge
school bus fleet that goes everywhere in the rural area. He said, if this is going to be a strategy, then it
needs to be addressed because it doesn’t seem the policy is really being followed, given the County’s
efforts to put expanded fire, rescue and police services into rural areas.
Mr. Rooker said it’s different depending on the service, and there are different response times for
fire and rescue – but people still expect a fire truck to come if their house is on fire. He said the question
is how intense the service is being provided in an area, and they don’t generally have basic services like
water and sewer. Mr. Rooker also stated that, if they said they would no longer provide bus service to
children that live in the rural area, there would be an uprising. He said he often sees buses go down every
road and cul-de-sac and, at times, it seems almost like a taxi service instead of a situation where children
walk to bus stops.
Ms. Mallek stated that Josh Davis with the School Division worked to change that situation over
the last several years, encouraging kids to come to the end of the road in a subdivision. She noted that
the schools were able to save about 1,000 miles off of routes with a new strategy, adding that she
received a lot of criticism from constituents who wanted to see their children picked up at the end of the
driveway for security reasons. Ms. Mallek said her response was that children are better off at a bus stop
with a group of kids and a few parents supervising.
Mr. Boyd said that he is simply facilitating the discussion so that the Board can talk about its
service delivery strategy.
Mr. Cilimberg said the Board would have an opportunity to address that topic in the Community
Facilities section, which is where the plan talks about service delivery and the differences between urban
and rural area services.
Mr. Foley noted that the fire and rescue response standards are contained in that section.
Ms. Echols asked if Board members were comfortable with the process of having staff meet with
them every month and go through chapters with them . She said, if the Board continues at that pace, they
will be done with the chapters in February.
Board members agreed that they were, and said they would be even more comfortable as the
process continued.
Ms. Echols went over a list of what the Board would be reviewing, by month and by meeting, and
said that the Board is scheduled to review Natural Resources, Historic and Cultural Resources, and
Economic Development in October.
Mr. Boyd asked if it would make sense to incorporate the implementation section of each chapter
as it moves forward, because that is a key component.
Ms. Echols confirmed that it was already in there, noting that Growth Management only had three
strategies – which were essentially the same as they were before.
Mr. Cilimberg clarified that staff would provide the priority implementation strategies in each
chapter that have been identified, noting that there were many more strategies identified beyond just the
priorities.
Mr. Rooker mentioned that there was a recommendation from ASAP that they have an annual
report on population growth in the County, suggesting a summary of population-related changes in the
rural and development areas of the County, as well as any modification of the growth area boundaries. He
said that their recommendation is that it should include recent population estimates and sketches of
regulations and changes that affect density, an update on the ACE Program, and changes in County
population as projected by the Virginia Employment Commission – as well as an assessment of the
impact of growth on public services such as schools, fire departments, etc. Mr. Rooker said this
information is generated internally already; it’s just not put into a single report and thought it could be
provided when Mr. Steve Allshouse presents his quarterly report.
Mr. Boyd asked how it would be done accurately without a census. Mr. Rooker said they could
look at the number of new students in rural areas schools versus growth areas schools, and said that it’s
just helpful to have this kind of information in one place at one time.
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Ms. Mallek said she liked the idea of a combined presentation.
Ms. Echols stated that the Planning Commission has proposed providing an annual report that
gives information on change and also tries to track any data generated within a given year to see if there
have been any changes. She said staff does population estimates annually based on building permits,
and that would probably be part of this – with one recommendation from the Commission being a
“residential capacity analysis,” and update that information every two years.
Mr. Boyd said, in order to get a realistic report, you’d have to survey the actual landowners and
look at those who have gotten rezoning approvals to get an accurate evaluation of capacity.
Mr. Rooker said that capacity indicates what the potential for the development of an area is, as
well as when/if the person who has it decides they want to move forward with it.
Mr. Foley asked if there was a request that staff begin to track population change in rural versus
development areas, because that’s not quite as simple as it seems. He said it’s not certain how many
people move into a household, but it can be estimated based on housing type.
Mr. Rooker said he isn’t asking staff to spend a lot of time creating a different piece of data, he is
just suggesting bringing together reports that are generated by schools, etc. on an annual basis.
Mr. Boyd asked if it would suffice if, each year during strategic planning when they get the
demographics, to add some categories to the report.
Mr. Rooker agreed that it would work.
Mr. Foley said that would be feasible for staff and said that, between Weldon Cooper’s estimates,
there’s activity going on which would be a little more number-crunching.
Mr. Rooker reiterated that he isn’t asking for anything that would take up additional staff time.
Mr. Foley said that he didn’t think it would.
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Agenda Item No. 3. Closed Meeting.
At 4:58 p.m., Mr. Craddock offered a motion that the Board go into Closed Meeting pursuant to
Section 2.2-3711(A) of the Code of Virginia under Subsection (3) to discussion the acquisition of real
property for public park land because an open meeting discussion would adversely affect the bargaining
position of the County; under Subsection (3) to discuss the acquisition of real property for court facilities
because an open meeting discussion would adversely affect the bargaining position of the County; and
under Subsection (7) to consult with legal counsel and staff regarding specific legal matters requiring legal
advice relating to the negotiation of an agreement for implementing a cooperative cost recovery program
for emergency service transports. Mr. Boyd seconded the motion.
Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
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Agenda Item No. 4. Call to Order. At 6:13 p.m., the meeting was called to order by the Chair, Ms.
Mallek.
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Agenda Item No. 5. Certify Closed Meeting.
At 6:12 p.m., Mr. Craddock moved that the Board certify by recorded vote that to the best of each
Board member’s knowledge, only public business matters lawfully exempted from the open meeting
requirements of the Virginia Freedom of Information Act and identified in the motion authorizing the closed
meeting were heard, discussed, or considered in the closed meeting. Ms. Mallek seconded the motion.
Roll was called and the motion carried by the following recorded vote:
Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
_______________
NonAgenda. Ms. Mallek moved to appoint Mr. E.N. Garnett to the Acquisition of Conservation
Easement (ACE) Committee, with said term to expire August 1, 2014. Mr. Rooker seconded the motion.
Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
_______________
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 8)
Ms. Mallek opened the meeting by remembering the events of September 11th.
Agenda Item No. 6. Pledge of Allegiance.
Agenda Item No. 7. Moment of Silence.
_______________
Agenda Item No. 8. Adoption of Final Agenda.
There being no additions to the agenda, the Board accepted the final agenda, as presented.
_______________
Agenda Item No. 9. Brief Announcements by Board Mem bers.
Ms. Mallek suggested that Mr. Foley speak with City Manager Maurice Jones to get notifications
of lane changes on the Route 250 bypass to be much further north, as the current notice does not give
drivers sufficient time to change lanes or get off at Dairy Road.
_____
Ms. Mallek reported that there have been some articles recently in the Washington Post about
people losing their homes over erroneous claims of unpaid bills, and requested that the Finance
Department was ensuring that they were being as careful as possible for these types of circumstances.
_____
Ms. Mallek said that an advertising company had dropped cups by every mailbox in several
Earlysville neighborhoods on September 5, and she did not think it was an appropriate way to advertise.
_______________
Agenda Item No. 10. Recognitions. Ms. Mallek moved to adopt the proclamations as presented
recognizing W omen’s Equality Day, National Emergency Preparedness Month, and World Alzheimer’s
Awareness Month. Mr. Snow seconded the motion.
Mr. Snow said that several weeks prior, he had suggested forming a comm ittee and writing a
resolution for women’s equality that would be “more suitable for our area” rather than part of a national
agenda. He stated that he asked Becky Wainbright of SARA, Pat Napoleon, and Ella Jordan to be a part
of that committee – and the resolution before the Board was written by them. He reiterated that he
supports the proposed proclamations and the motion.
Ms. Mallek said that she had a hard time finding the differences between this one and the one
presented several weeks ago, and she would have supported either measure.
Mr. Snow said that this one is “positive” and “applicable to our area.”
Mr. Rooker stated that he supported the longer resolution that was previously before the Board
and that he would support the current resolution.
Mr. Thomas said that he would also support the resolution.
Roll was then called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
_____
a. Proclamation recognizing September, 2013 as National Emergency Preparedness Month.
Ms. Mallek read the following proclamation recognizing September as National Emergency
Preparedness Month, and recognized Kirby Felts and Tom Hanson as the local leaders in emergency
preparedness efforts.
NATIONAL PREPAREDNESS MONTH
WHEREAS, “National Preparedness Month” creates an opportunity for residents of
Albemarle County to prepare their homes, businesses, and communities for
any type of emergency from natural to man-made disasters; and
WHEREAS,
investing in the preparedness of ourselves, our families, businesses, and
communities can improve our resilience as we protect against, respond to,
recover from, and mitigate hazards; and
WHEREAS,
Ensuring the health and safety of the community is a strategic goal for
Albemarle County and a community priority to fulfill the vision of a thriving
County; and
WHEREAS,
Promoting individual responsibility and citizen ownership of community
challenges is a strategic goal for Albemarle County; and
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 9)
WHEREAS, emergency preparedness is the personal responsibility of every citizen of
Albemarle County; and
WHEREAS,
all citizens are urged to make preparedness a priority and participate in local
activities to educate themselves on how to take action and work together to
ensure that individuals and families in Albemarle County are prepared for
disasters and emergencies of any type; and
WHEREAS,
all citizens of Albemarle County are encouraged to review the Federal
Emergency Management Agency Ready campaign Web sites at ready.gov
or listo.gov (in Spanish) and become more prepared;
NOW, THEREFORE, BE IT RESOLVED that the Albemarle County Board of Supervisors
hereby proclaims
September 2013
as
National Preparedness Month
and encourages all citizens and businesses to develop their own emergency
plan, build an emergency kit, and work together toward creating a more
prepared community.
Ms. Kirby Felts, Emergency Management Coordinator, addressed the Board and thanked them
for the recognition, as well as providing tips on how to prepare a kit for emergencies and encouraging the
public to sign up for the community emergency alert system or join the community response team class.
_____
b. Proclamation recognizing September, 2013 as World Alzheimer’s Awareness Month.
Ms. Mallek read a proclamation and presented to Ms. Sue Friedman, President of the Central and
Western Virginia Chapter of the Alzheimer’s Association:
2013 World Alzheimer’s Month
Whereas, the nation and the County of Albemarle observe World Alzheimer’s Awareness Month
during the month of September; and
Whereas, Alzheimer’s disease, a progressive neurodegenerative brain disorder, tragically robs
individuals of their memories and leads to progressive mental and physical impairments; and
Whereas, more than 5 million Americans have Alzheimer’s disease with as many as 200,000 of those
are individuals under age 65 who have younger-onset Alzheimer’s; and
Whereas, Alzheimer’s disease is the sixth leading cause of death in the U.S., more than prostate
cancer and breast cancer combined; and
Whereas, the human cost of Alzheimer’s disease is staggering. In 2012, 15.4 million caregivers
provided an estimated 17.5 billion hours of unpaid care, a contribution to the nation valued at
more than $216 billion; and
Whereas, every 68 seconds, someone in America develops Alzheimer’s disease and by mid-century
someone will develop Alzheimer’s every 33 seconds; and
Whereas, in recognition of the individuals, families, friends and caregivers dealing with Alzheimer’s
disease, the researchers who are seeking a cause or cure; and
Whereas, the County of Albemarle recognizes the efforts of the Alzheimer’s Association to raise funds
to support research and promote awareness of Alzheimer’s disease and asks its citizens to
find ways to Do A Little Big Thing in the fight to end the disease;
Now, Therefore, Be It Resolved, that the Albemarle County Board of Supervisors does hereby proclaim the
month of September 2013, as World Alzheimer’s Awareness Month.
Ms. Sue Friedman thanked the Board for its recognition and encouraged the public to observe the
10 warning signs and support those who are caregivers.
_____
c. Proclamation recognizing Women’s Equality Day
Ms. Mallek then read the following proclamation:
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 10)
WOMEN’S EQUALITY DAY
WHEREAS, Women’s Equality Day is intended to draw attention to the fact that women were given
the right to vote in 1920; and
WHEREAS, it is incumbent upon all of us to work within our communities to be advocates for the
rights of all women, men and children; and
WHEREAS, it is important that we encourage everyone to take advantage of the resources and
services that are available in this community, such as schools, law enforcement, local government, and
human services agencies to help guarantee those rights; and
WHEREAS, knowledge empowers women, men and children, which then strengthens families, the
fundamental unit of society; and
WHEREAS, the Albemarle County Board of Supervisors strongly supports equal pay for equal work
for all citizens, regardless of gender;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors of Albemarle County, Virginia,
does hereby recognize
WOMEN'S EQUALITY DAY
in the County of Albemarle in remembrance of all women and men who have worked to develop a more
equitable community, and one which advocates for all its citizens.
_______________
Agenda Item No. 11. From the Public: Matters Not Listed for Public Hearing on the Agenda.
Ms. Kobby Hoffman addressed the Board, stating that she is the President of the National
Organization for Women’s Charlottesville chapter. Ms. Hoffman said that while they are grateful that the
Board has passed a proclamation recognizing Women’s Equality Day, they are still a bit aghast and
confused and disappointed because after more than a decade of the Board passing the NOW
proclamation, they now have had it rewritten. She stated that she really does not understand the big deal
about it, and why their lives are brushed off as a national issue because it’s an individual issue. Ms.
Hoffman said that this makes her really question her officials and where they are in their support of
women in the County, and encouraged them to do a scientifically defendable survey in the County to get a
full picture of any roadblocks that may exist – then address them.
_____
Ms. Donni Long addressed the Board, stating that she was before them to address the special
use permit request by the Field School of Crozet for a facility on Polo Grounds Road. Ms. Long said that
the proposed special use permit would be in opposition to the expressed goals of their Comp Plan with
regard to the use and preservation of rural areas, and also raises concerns over safety to the residents
and others served by the road. She stated that the Comp Plan states that the rural areas are to be
protected and to serve as buffer zones for areas that are more developed in nature, and Polo Grounds
Road is designated as a buffer between the developed areas between Carrsbrook and Hollymead. Ms.
Long said that granting a special use permit to allow a private school – a for-profit business – to be built is
in direct violation of the stated purpose of the rural areas in the Comp Plan. She encouraged Board
members to drive out Polo Grounds Road around the time that students would be arriving or departing the
proposed school entrance, noting that lying just 500 feet from that entrance is a sharp, blind curve. Ms.
Long said that the issue before them is not one of character or the worthiness of the Field School, as it is
a worthy endeavor to educate young men, but whether the Board intends to respect and uphold the stated
goals of the County for the use and protection of rural land, and whether they will safeguard residents who
use the land around Polo Grounds Road.
_____
Ms. Ann Eddins addressed the Board and thanked them for passing the resolution recognizing
Women’s Equality Day. She said that when her grandmother gave birth to her father in 1917, she still
could not vote, but she must have been pretty excited when August 26, 1920 came around – and that is
who she thinks of with this action.
_____
Mr. Tim Leroux addressed the Board, stating that he is director of operations for the Local Energy
Alliance Program (LEAP), a nonprofit advocating for energy efficiency in buildings – particularly public
buildings that the County owns and uses. Mr. Leroux said that the LEAP Board, which includes Mr. Snow
and Ms. Mallek, and stated that he was here to tell the Board about a partnership LEAP is undertaking
with Dominion Power. He reported that over the years, LEAP has conducted low-cost energy
assessments of residents’ homes, and they are currently partnering with Dominion to do direct installs of
energy-efficient gear such as CFL light bulbs, weatherization of doors, and smart strips. Mr. Leroux said
that they are excited about this effort and feel that they may be able to achieve a market penetration they
haven’t experienced before, and their strategy is to conduct neighborhood sweeps. He stated that they
would work with PTOs and neighborhood associations and other local organizations to get into
neighborhoods, and as a resident of Hollymead he joined the team on his street and found that 9 out of 17
residents of Tinker’s Cove Road were excited about this opportunity. Mr. Leroux said that as part of their
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 11)
neighborhood effort, they would donate a portion of the proceeds they receive to the local
elementary PTO or whatever organization is helping out.
_____
Ms. Nancy Carpenter addressed the Board, stating that she believes it is part of the responsibility
of a County Supervisor to listen to resolutions brought forth by the public, and they are the modern
equivalent of peasants coming to the seat of government asking for redress. She said that when the
Board adopts these resolutions, they are effectively saying that they are hearing their constituents when it
comes to national and global policies that affect them on the local level. Ms. Carpenter said that these
resolutions can express sorrow, show support for organizations or people, direct public policy to County
employees, etc., and Congress adopts non-binding resolutions on all types of things, all the time.
_____
Ms. Claire Johnson addressed the Board, stating that she moved to the County in 1986 and has
generally found it to be a delightful place to live, but recently has wondered who is making certain
decisions and why, particularly when it comes to working with VDOT. Ms. Johnson said that she is aware
of at least three locations that have left turn-arrows that make it very dangerous, and in speaking with
VDOT they said to talk to the Board of Supervisors. She stated that the turn coming out of Stonefield
across from the post office is absolutely asinine, and the other locations include Berkmar Drive heading
south from the credit union as you try to turn into Lowe’s or Kroger, Commonwealth Drive as you’re
heading south from the Comcast area to turn left onto Greenbrier Drive, and coming out of Cedar Hill
across from Stonefield where you are forced to go to 29 instead of turning left on Hydraulic.
_____
Ms. Amy Sarah Marshall addressed the Board, stating that she is president of the Charlottesville
Pride Community Network and believes there may be some misconceptions about how many people care
about this issue. She presented a picture from the first annual Pride Festival held the previous year,
noting that there were thousands of people attending – not all of whom were gay or from the
Charlottesville region. Ms. Marshall asked those in the audience who support the Pride Festival and what
it stands for to stand up. She said that there are gay people in Albemarle County who face discrimination
on a daily basis, and she knows those who have lost their children or their jobs and were turned away
from housing just because they are gay. Ms. Marshall said that a lot of these people have money and
they vote, and there is growing acceptance in the region. She stated that this is not a special interest, it is
a human rights interest, and invited Board members to come to the Pride Festival.
_____
Mr. Rit Venerus addressed the Board, stating that he would be addressing them regarding the
Costco at Stonefield proposal. He stated that as a daily user of the Hydraulic Road area and Route 29
corridor, he has seen the traffic go from bad to worse and at times it can be a complete nightmare, and
adding a new store of this size will only add to the traffic and make it worse.
Ms. Mallek said that the Board would take public comment on the proposed modifications during
that item on the agenda.
_____
Mr. David Schmitt addressed the Board, stating that he is addressing them regarding the Field
School proposal for a special use permit. Mr. Schmitt said that most of what he has heard in favor of the
proposal has to do with the personal characteristics of Dr. Barnett and the merits of the school, but the
decision the Board makes has nothing to do with those factors. He stated that the overwhelming majority
of the people affected by this do not favor the awarding of the special use permit, and the consideration
must be made that this is a private school serving a relatively small number of young men who will pass
through the school in a few years – in contrast to residents in the area who will live there for many years to
come. Mr. Schmitt also noted that Dr. Barnett may come and go, and while the school may not persist,
the special use permit will.
_____
Ms. Letie Bien addressed the Board, stating that she lives in Bentivar off of Polo Grounds Road
and is here in regard to the special use permit for the Field School. Ms. Bien said that the Board seems to
believe that the only issue related to the SP is the light at Route 29, and the assumption is just plain
wrong. She stated that a right turn lane has been proposed, and the approximate costs were estimated by
VDOT and staff at about $200,000 – with the school proffering $25,000 toward that purpose. Ms. Bien
said that 39 vehicles were backed up at the light on Sunday afternoon waiting to enter 29, and most of
them turned left to head south – not north – so a right turn lane would hardly impact this. She stated that
this traffic was generated in part from MONU and SOCA, and the special use permit for MONU stipulated
that they were going to work with SOCA and not have events at the same time. Ms. Bien also asked
where the funding for the new right turn lane would come, noting that most of the County’s secondary road
priorities remain unfunded at this time. Ms. Bien encouraged Board members to recommit themselves to
safety and to following the Comp Plan, as most of them seem to have ignored or discounted the reasons
why to deny this special use permit.
_______________
Agenda Item No. 12. Consent Agenda. Motion was offered by Ms. Mallek, seconded by Mr.
Snow, to pull Item 12.1, to approve Items 12.2 through 12.4 (as requested) on the consent agenda, and to
accept Item 12.5 as information. Roll was called and the motion carried by the following recorded vote:
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 12)
Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
_____
Item No. 12.1. Approval of Minutes: July 3, 2013.
Ms. Mallek stated that she had not read the July 3, 2013 minutes and asked that they be
pulled.
By the above-recorded vote, the minutes were pulled and carried forward to the
next meeting.
_____
Item No. 12.2. Resolution to accept road(s) in The Farms at Turkey Run Subdivision into the
Secondary System of Highways.
By the above-recorded vote, and at the request of the County Engineer, the Board adopted
the following Resolution
The Board of County Supervisors of Albemarle County, Virginia, in regular meeting on the September
11, 2013, adopted the following resolution:
R E S O L U T I O N
WHEREAS, the street(s) in The Farms at Turkey Run Subdivision, as described on the attached
Additions Form AM-4.3 dated September 11, 2013, fully incorporated herein by reference, is shown on plats
recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia; and
WHEREAS, the Resident Engineer for the Virginia Department of Transportation has advised the
Board that the street(s) meet the requirements established by the Subdivision Street Requirements of the
Virginia Department of Transportation.
NOW, THEREFORE, BE IT RESOLVED, that the Albemarle Board of County Supervisors requests
the Virginia Department of Transportation to add the street(s) in The Farms at Turkey Run Subdivision, as
described on the attached Additions Form AM-4.3 dated September 11, 2013, to the secondary system of
state highways, pursuant to §33.1-229, Code of Virginia, and the Department's Subdivision Street Require-
ments; and
BE IT FURTHER RESOLVED that the Board guarantees a clear and unrestricted right -of-way, as
described, exclusive of any necessary easements for cuts, fills and drainage as described on the recorded
plats; and
FURTHER RESOLVED that a certified copy of this resolution be forwarded to the Resident Engineer
for the Virginia Department of Transportation.
* * * * *
The road(s) described on Additions Form AM-4.3 is:
1) Courtenay Glen Way (State Route 1348) from (Route 1347) Jordan Run Lane to 0.28
miles north, as shown on plat recorded in the office the Clerk of Circuit Court of Albemarle
County in Deed Book 4368, page 651, with a 50-foot right-of-way width, for a length of 0.28
miles.
2) Jordan Run Lane (1347) from (Route 795) Blenheim Road to 0.57 miles east to Route 1348
(Courtenay Glen Way), as shown on plat recorded in the office the Clerk of Circuit Court of
Albemarle County in Deed Book 4368, page 651, with a 50-foot right-of-way width, for a
length of 0.57 miles.
Total Mileage – 0.85
_____
Item No. 12.3. Resolution to adopt a revised Administrative Plan for the Housing Choice Voucher
Program.
The executive summary stated that the Albemarle County Office of Housing (“Office”) is the
designated local agency for the administration of the Housing Choice Voucher Program (“Program”),
formerly known as the Section 8 Rental Assistance Program. The Office is considered a part of the
executive branch of local government and not a public housing authority. Although not a housing
authority, the Office must comply with U.S. Department of Housing and Urban Development (“HUD”)
requirements for Public Housing Agency (“PHA”) activities, including the development and implementation
of a 5-Year PHA Plan with annual updates as necessary and an Administrative Plan (“Plan”) which
specifies policies adopted by the County.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 13)
The Board approved a revised Plan on June 6, 2012, which was submitted to HUD for review and
comment. On August 1, 2012, HUD submitted its comments on the Plan to the Office, whic h made
revisions to the Plan reflecting those comments and guidance provided in PIH Notice 2011-54 (HA). This
revision was approved by the Board on September 5, 2012, and the Office sent the revision to HUD for its
review.
A letter from HUD dated July 19, 2013, a copy of which was provided to the Board at its August
14, 2013 meeting, identified an additional fifty-four items that HUD requested be addressed in the Plan.
Because most of the items addressed non-discretionary regulatory requirements and are not required as a
part of the Plan based on guidance for Plan development, the Office challenged HUD’s comments. In a
letter received on August 8, 2013, HUD reiterated that all of the items must be addressed in a revised
Plan. All of the items are part of Chapter 20 of the Plan, specifically addressing Project-based Vouchers.
The Office has revised Chapter 20 (Attachment A) and will insert the chapter, once approved, into the
previously-approved Plan. Board members may wish to focus on those areas where the Office has
discretion. Any section of the Plan in which the Office has discretion will reference the relevant ACOH
Policy.
There is no budget impact anticipated because of this action. HUD provides annual budget
authority for the voucher program from which any project-based vouchers may be funded.
Staff recommends that the Board adopt the attached Resolution (Attachment B) to approve the
revisions to Chapter 20 of the Administrative Plan and to authorize the Chief of Housing to implement the
Program in accordance with the approved Plan.
By the above-recorded vote, the Board adopted the following Resolution to approve the
revisions to Chapter 20 of the Administrative Plan and to authorize the Chief of Housing to
implement the Program in accordance with the approved Plan:
RESOLUTION
WHEREAS, the County of Albemarle is a Public Housing Agency (“PHA”) as defined by the U.S.
Department of Housing and Urban Development (“HUD”) for the administration of the Housing Choice
Voucher Program (HCV); and
WHEREAS, federal requirements for the HCV Program include that each PHA maintain an
Administrative Plan which sets forth policies for the administration of the program; and
WHEREAS, the Albemarle County Board of Supervisors (“Board”) approved an updated
Administrative Plan on June 6, 2012, which was submitted to HUD for review and comment; and
WHEREAS, HUD’s comments required revision of the Administrative Plan; and
WHEREAS, the Administrative Plan was revised based on HUD comments and guidance provided in
HUD’s Notice PIH 2011-54(HA), was approved by the Board on September 5, 2012, and was resubmitted to
HUD; and
WHEREAS, HUD requested additional revisions on July 19, 2013, specifically to Chapter 20,
pertaining to Project-based Vouchers; and
WHEREAS, the Office of Housing is required to have the requested revisions to Chapter 20 approved
by the Board and inserted into the Plan that was previously approved on September 5, 2012.
NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of Albemarle County hereby
approves the revisions to Chapter 20 of the Administrative Plan and authorizes the Chief of Housing to
implement the policies set forth in the plan.
*****
Chapter 20
PROJECT-BASED VOUCHERS
(24 CFR 983)
20.1 INTRODUCTION
The County of Albemarle considers the use of project-based vouchers as critical in supporting housing
opportunities that address one or m ore of the following objectives:
i. Deconcentrating poverty
ii. Preserving and Expanding housing availability
iii. Supporting nonprofit housing initiatives (owner and partnership ventures)
iv. Supporting housing with long-term affordability commitments
v. Supporting special populations (elderly, disabled, homeless)
vi. Ensuring financial viability of housing
20.2 PROGRAM AUTHORITY
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 14)
The Albemarle County Office of Housing (ACOH) operates its project-based voucher (PBV) program as a
component of its rental assistance activities and will comply with all regulations found in 24 CFR 983 and
applicable regulations found in 24 CFR 982. In the event that certain provisions in 24 CFR 982 differ from
those in 24 CFR 983, the provisions in 24 CFR 983 shall govern. ACOH shall use the definitions found at
24CFR983.3 and attached hereto and comply with all cross-cutting Federal requirements found in
24CFR983.4, also attached) and associated citations as noted in 24CFR983.4.
Funding for the program comes from the annual budget authority for the Housing Choice Voucher
Program. ACOH may select owner proposals to provide PBV assistance for up to 20% of the amount of
budget authority allocated by HUD under the Housing Choice Voucher Program. ACOH is not required to
reduce the number of PBV units under a Housing Assistance Payment Contract (HAP) if the amount of
budget authority is subsequently reduced. ACOH may take other actions to stay within the allocated
funding such as discontinuing funding upon vacancy or reducing assistance to voucher holders and
project-based units.
ACOH shall monitor the usage of the budget authority available for PBVs on a monthly basis and no
owner proposals shall be solicited for additional PBVs if sufficient budget authority does not exist. Since
HAP contracts do not assign a specific budget authority to each property, the total of the previous month’s
PBV payments shall be used to determine if additional budget authority exists.
20.3 HOUSING TYPES
ACOH will consider owner proposals for the following types of housing for the use of PBVs.
1. preservation of existing affordable units likely to be lost due to sale, refinance, and/or opt-out of
federal contracts by the owner(s); and,
2. creation (construction) of new affordable rental housing when a nonprofit agency is a partner and
has executed a first right-of-refusal that may be exercised within 15 years or, if a tax credit deal,
owner has agreed to an extended compliance period of 30 years.
3. existing housing which address one or more of the objectives listed in 20.1, meet HQS
standards at the time of selection and received other funding which requires rent and
occupancy restrictions.
ACOH shall not provide assistance for any of the special housing types listed in 24CFR983.9, ineligible
units found in 24CFR983.53 or subsidized units found in 24CFR983.54.
ACOH’s policies govern the use of PBVs in privately-owned housing units only. ACOH does not own nor
does it anticipate owning public housing units or any other type of housing units (24CFR983.59).
20.4 RELOCATION REQUIREMENTS [24 CFR 983.7]
Any persons displaced as a result of implementation of the PBV program must be provided relocation
assistance in accordance with the requirements of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (URA)[42 U.S.C. 4201-4655] and implementing regulations at 49 CFR
part 24.
The cost of required relocation assistance may be paid with funds provided by the owner, local public
funds, or funds available from other sources. ACOH may not use voucher program funds to cover
relocation costs, except that ACOH may use their administrative fee reserve to pay for relocation
expenses after all other program administrative expenses are satisfied, and provided that payment of the
relocation benefits is consistent with state and local law. Use of the administrative fee for these purposes
must also be consistent with other legal and regulatory requirements, including the requirement in 24
CFR 982.155 and other official HUD issuances.
The acquisition of real property for a PBV project is subject to the URA and 49 CFR part 24, subpart
B. It is the responsibility of ACOH to ensure the owner complies with these requirements.
20.5 EQUAL OPPORTUNITY REQUIREMENTS [24 CFR 983.8]
ACOH must comply with all equal opportunity requirements under federal law and regulations in its
implementation of the PBV program. This includes the requirements and authorities cited at 24 CFR
5.105(a). In addition, ACOH must comply with ACOH Plan certification on civil rights and affirmatively
furthering fair housing, submitted in accordance with 24 CFR 903.7(o).
20.6 OWNER PROPOSAL SELECTION PROCEDURES [24 CFR 983.51]
ACOH must select PBV proposals in accordance with the selection procedures in ACOH administrative
plan. ACOH must select PBV proposals by either of the following two methods.
ACOH request for PBV Proposals. ACOH may solicit proposals by using a request for proposals to
select proposals on a competitive basis in response to ACOH request. ACOH may not limit proposals
to a single site or impose restrictions that explicitly or practically preclude owner submission of
proposals for PBV housing on different sites.
ACOH may select proposal that were previously selected based on a competition. This may include
selection of a proposal for housing assisted under a federal, state, or local government housing
assistance program that was subject to a competition in accordance with the requirements of the
applicable program, community development program, or supportive services program that requires
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 15)
competitive selection of proposals (e.g., HOME, and units for which competitively awarded LIHTCs have
been provided), where the proposal has been selected in accordance with such program's competitive
selection requirements within three years of the PBV proposal selection date, and the earlier competitive
selection proposal did not involve any consideration that the project would receive PBV assistance.
Solicitation and Selection of PBV Proposals [24 CFR 983.51(b) and (c)]
ACOH procedures for selecting PBV proposals must be designed and actually operated to provide
broad public notice of the opportunity to offer PBV proposals for consideration by ACOH. The public
notice procedures may include publication of the public notice in a local newspaper of general
circulation and other means designed and actually operated to provide broad public notice. The
public notice of ACOH request for PBV proposals must specify the submission deadline. Detailed
application and selection information must be provided at the request of interested parties.
ACOH Policy
ACOH Request for Proposals for Rehabilitated and Newly Constructed Units ACOH will
advertise its request for proposals (RFP) for rehabilitated and newly constructed housing in the
following newspapers and trade journals:
The Daily Progress
In addition, ACOH will post the RFP and proposal submission and rating and ranking procedures on
its electronic web site (www.albemarle.org/housing).
ACOH will publish its advertisement in the newspaper mentioned above one time. The advertisement
will specify the number of units ACOH estimates that it will be able to assist under the funding ACOH is
making available. Proposals will be due in ACOH office by close of business 14 calendar days from the
date of the last publication.
In order for the proposal to be considered, the owner must submit the proposal to ACOH by the
published deadline date, and the proposal must respond to all requirements as outlined in the RFP.
Incomplete proposals will not be reviewed.
ACOH will rate and rank proposals for rehabilitated and newly constructed housing using the following
criteria:
Owner experience and capability to build or rehabilitate housing as identified in the RFP;
Existence of a nonprofit partner or first-right-of-refusal to a nonprofit entity in the event of a future sale;
Extent to which the project furthers ACOH goal of deconcentrating poverty and expanding housing and
economic opportunities;
If applicable, the extent to which services for special populations are provided on site or in the immediate
area for occupants of the property; and
Projects with less than 25 percent of the units assisted will be rated higher than projects with 25
percent of the units assisted. In the case of projects for occupancy by the elderly, persons with
disabilities or families needing other services, ACOH will rate partially assisted projects on the percent
of units assisted. Projects with the lowest percent of assisted units will receive the highest score.
ACOH Requests for Proposals for Existing Housing Units
ACOH will advertise its request for proposals (RFP) for existing housing in the f ollowing newspapers and
trade journals.
The Daily Progress
In addition, ACOH will post the notice inviting such proposal submission and the rating and ranking
procedures on its electronic web site (www.albemarle.org/housing).
ACOH will publish its advertisement in the newspaper mentioned above at least one time. The
advertisement will specify the number of units ACOH estimates that it will be able to assist under the
funding ACOH is making available. Owner proposals will be accepted on a first-come first-served basis
and will be evaluated using the following criteria:
Experience as an owner in the tenant-based voucher program and owner compliance with the
owner’s obligations under the tenant-based program;
Existence of a nonprofit partner or first-right-of-refusal to a nonprofit entity in the event of a future sale;
Extent to which the project furthers ACOH goal of deconcentrating poverty and expanding housing and
economic opportunities;
If applicable, extent to which services for special populations are provided on site or in the immediate
area for occupants of the property; and
Extent to which units are occupied by families that are eligible to participate in the PBV program.
ACOH Selection of Proposals Subject to a Previous Competition under a Federal, State, or Local
Housing Assistance Program
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 16)
ACOH will accept proposals for PBV assistance from owners that were competitively selected under
another federal, state or local housing assistance program, including projects that were competitively
awarded Low-Income Housing Tax Credits on an ongoing basis.
ACOH may advertise that it is accepting proposals, in the following newspapers and trade
journals:
The Daily Progress
In addition to, or in place of advertising, ACOH may also directly contact specif ic owners that have already
been selected for Federal, state, or local housing assistance based on a previously held competition, to
inform them of available PBV assistance.
Proposals will be reviewed on a first-come first-served basis. ACOH will evaluate each proposal on its
merits using the following factors:
Extent to which the project furthers ACOH goal of deconcentrating poverty and expanding housing and
economic opportunities;
Existence of a nonprofit partner or first-right-of-refusal to a nonprofit entity in the event of a future sale;
and
Extent to which the proposal complements other local activities such as the HOME program, CDBG
activities, other development activities.
ACOH-owned Units [24 CFR 983.51(e) and 983.59]
ACOH-owned unit may be assisted under the PBV program only if the HUD field office or HUD-
approved independent entity reviews the selection process and determines that ACOH-owned units
were appropriately selected based on the selection procedures specified in ACOH administrative plan. If
ACOH selects a proposal for housing that is owned or controlled by ACOH, ACOH must identify the
entity that will review ACOH proposal selection process and perform specific functions with respect to
rent determinations and inspections.
In the case of ACOH-owned units, the initial contract rent must be approved by an independent entity based
on an appraisal by a licensed, state-certified appraiser. In addition, housing quality standards inspections
must be conducted by an independent entity.
The independent entity that performs these program services may be the unit of general local government
for ACOH jurisdiction (unless ACOH is itself the unit of general local government or an agency of such
government) or another HUD-approved public or private independent entity. ACOH may only compensate
the local independent entity and appraiser from ACOH's ongoing administrative fee income (including
amounts credited to the administrative fee reserve). ACOH may not use other program receipts to
compensate the independent entity and appraiser for their services. ACOH, independent entity, and
appraiser may not charge the family any fee for the appraisal or the services provided by the independent
entity.
ACOH Policy
ACOH does not own and does not intend to own any housing units. If, however, ACOH acquires
housing units, it will follow the prescribed requirements herein.
ACOH Notice of Owner Selection [24 CFR 983.51(d)]
ACOH must give prompt written notice to the party that submitted a selected proposal and must also give
prompt public notice of such selection. Public notice procedures may include publication of public notice in
a local newspaper of general circulation and other means designed and actually operated to provide broad
public notice.
ACOH Policy
Within 10 business days of ACOH making the selection, ACOH will notify the selected owner in writing
of the owner’s selection for the PBV program. ACOH will also notify in writing all owners that submitted
proposals that were not selected and advise such owners of the name of the selected owner.
In addition, ACOH will publish its notice for selection of PBV proposals once in the same newspaper
ACOH used to solicit the proposals. The announcement will include the name of the owner that was
selected for the PBV program. ACOH will also post the notice of owner selection on its electronic web
site.
ACOH will make available to any interested party its rating and ranking sheets and documents that identify
ACOH basis for selecting the proposal. These documents will be available for review by the public and
other interested parties for one month after publication of the notice of owner selection. ACOH will not
make available sensitive owner information that is privileged, such as financial statements and similar
information about the owner. ACOH will make these documents available for review at ACOH during
normal business hours.
20.7 HOUSING TYPE [24 CFR 983.52]
ACOH may attach PBV assistance for units in existing housing or for newly constructed or rehabilitated
housing developed under and in accordance with an agreement to enter into a housing assistance
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 17)
payments contract that was executed prior to the start of construction. A housing unit is considered an
existing unit for purposes of the PBV program, if, at the time of notice of ACOH selection, the units
substantially comply with HQS. Units for which new construction or rehabilitation was started in
accordance with PBV program requirements do not qualify as existing housing.
ACOH must decide what housing type, new construction, rehabilitation, or existing housing, will be used to
develop project-based housing. ACOH choice of housing type must be reflected in its solicitation for proposals.
20.8 SUBSIDY LAYERING REQUIREMENTS [24 CFR 983.55, FR Notice 11/24/08]
ACOH may provide PBV assistance only in accordance with HUD subsidy layering regulations [24 CFR
4.13] and other requirements.
The subsidy layering review is intended to prevent excessive public assistance by combining (layering)
housing assistance payment subsidy under the PBV program with other governmental housing assistance
from federal, state, or local agencies, including assistance such as tax concessions or tax credits.
ACOH must submit the necessary documentation to HUD for a subsidy layering review. Except in cases
of HAP contracts for existing structures, or if such reviews have been conducted by the applicable state
and local agencies, ACOH may not enter into an agreement to enter into a HAP contract or a HAP
contract until HUD (or an independent entity approved by HUD) has conducted any required subsidy
layering review and determined that the PBV assistance is in accordance with HUD subsidy layering
requirements.
The HAP contract must contain the owner's certification that the project has not received and will not
receive (before or during the term of the HAP contract) any public assistance for acquisition,
development, or operation of the housing other than assistance disclosed in the subsidy layering
review in accordance with HUD requirements.
20.9 CAP ON NUMBER OF PBV UNITS IN EACH PROJECT 25 Percent per Project Cap [24 CFR
983.56(a), FR Notice 11/24/08]
In general, ACOH may not select a proposal to provide PBV assistance for units in a project or enter into
an agreement to enter into a HAP or a HAP contract to provide PBV assistance for units in a project, if
the total number of dwelling units in the project that will receive PBV assistance during the term of the
PBV HAP contract is more than 25 percent of the number of dwelling units (assisted or unassisted) in
the project.
Exceptions to 25 Percent per Project Cap [24 CFR 983.56(b), FR Notice 11/24/08]
Exceptions are allowed and PBV units are not counted against the 25 percent per project cap if:
The units are in a single-family building (one to four units);
The units are excepted units in a multifamily building because they are specifically made
available for elderly or disabled families or families receiving supportive services (also known as
qualifying families).
ACOH must include in ACOH administrative plan the type of services offered to families for a project to
qualify for the exception and the extent to which such services will be provided. It is not necessary that
the services be provided at or by the project, if they are approved services. To qualify, a family must
have at least one member receiving at least one qualifying supportive service. ACOH may not require
participation in medical or disability-related services other than drug and alcohol treatment in the case of
current abusers as a condition of living in an excepted unit, although such services may be offered.
ACOH Policy
Supportive services must be appropriate to the population to be served and help residents stabilize and
improve their health, incomes, and housing.
If a family at the time of initial tenancy is receiving, and while the resident of an excepted unit has
received, FSS supportive services or any other supportive services as defined in ACOH administrative
plan, and successfully completes the FSS contract of participation or the supportive services requirement,
the unit continues to count as an excepted unit for as long as the family resides in the unit.
ACOH must monitor the excepted family's continued receipt of supportive services and take appropriate
action regarding those families that fail without good cause to complete their supportive services
requirement. ACOH administrative plan must state the form and frequency of such monitoring.
ACOH Policy
ACOH will provide PBV assistance for excepted units and monitor the continued receipt of services
annually at the time of recertification
Promoting Partially-Assisted Buildings [24 CFR 983.56(c)]
ACOH may establish local requirements designed to promote PBV assistance in partially assisted
buildings. A partially assisted building is a building in which there are fewer units covered by a HAP
contract than residential units [24 CFR 983.3].
ACOH may establish a per-building cap on the number of units that will receive PBV assistance or other
project-based assistance in a multifamily building containing excepted units or in a single-family building.
ACOH may also determine not to provide PBV assistance for excepted units, or ACOH may establish a
per-building cap of less than 25 percent.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 18)
ACOH Policy:
ACOH will provide PBV assistance for excepted units and partially assisted buildings consistent with all
policies set forth in this Chapter.
20.10 SITE SELECTION STANDARDS
Compliance with PBV Goals, Civil Rights Requirements, and HQS Site Standards [24 CFR
983.57(b)]
ACOH may not select a proposal for existing, newly constructed, or rehabilitated PBV housing on a site or
enter into an agreement to enter into a HAP contract or HAP contract for units on the site, unless ACOH
has determined that PBV assistance for housing at the selected site is consistent with the goal of
deconcentrating poverty and expanding housing and economic opportunities. The standard for
deconcentrating poverty and expanding housing and economic opportunities must be consistent with
ACOH Annual Plan under 24 CFR 903 and ACOH administrative plan.
In addition, prior to selecting a proposal, ACOH must determine that the site is suitable from the
standpoint of facilitating and furthering full compliance with the applicable Civil Rights Laws, regulations,
and Executive Orders, and that the site meets the HQS site and neighborhood standards at 24 CFR
982.401(l).
ACOH Policy
It is ACOH goal to select sites for PBV housing that provide for deconcentrating poverty and expanding
housing and economic opportunities. In complying with this goal ACOH will limit approval of sites for PBV
housing in census tracts that have poverty concentrations of 20 percent or less.
However, ACOH will grant exceptions to the 20 percent standard where ACOH determines that the PBV
assistance will complement other local redevelopment activities designed to deconcentrate poverty and
expand housing and economic opportunities in census tracts with poverty concentrations greater than 20
percent, such as sites in:
A census tract in which the proposed PBV development will be located in a HUD-designated
Enterprise Zone, Economic Community, or Renewal Community;
A census tract where the concentration of assisted units will be or has decreased as a result of
public housing demolition and HOPE VI redevelopment;
A census tract in which the proposed PBV development will be located is undergoing
significant revitalization as a result of state, local, or federal dollars invested in the area;
A census tract where new market rate units are being developed where such market rate
units will positively impact the poverty rate in the area;
A census tract where there has been an overall decline in the poverty rate within the past five
years; or
A census tract where there are meaningful opportunities for educational and economic
advancement.
ACOH will use the criteria for existing units and new construction of units in the selection of PBV sites.
For existing housing units and housing units proposed for rehabilitation, the following apply:
Site must be adequate in size with adequate utilities and infrastructure to serve the units;
The proposed site must promote a greater choice of housing opportunities and avoid
undue concentration of assisted families in areas with a high proportion of low-income
families;
Site must be accessible to social, recreational, educational, commercial, and health
facilities/services;
Be located such that travel time and cost via public transportation or private vehicle from
the site to places of employment with a range of jobs for lower-income workers is not
excessive. This requirement may not be rigidly adhered to for elderly housing proposals.
For new construction, ACOH will consider the following criteria:
Site must be adequate in size with adequate utilities and infrastructure to serve the units;
The site must not be located in an area of minority concentration;
The proposed site must promote a greater choice of housing opportunities and avoid
undue concentration of assisted families in areas with a high proportion of low-income
families;
Site must be accessible to social, recreational, educational, commercial, and health
facilities/services;
Be located such that travel time and cost via public transportation or private vehicle from
the site to places of employment with a range of jobs for lower-income workers is not
excessive. This requirement may not be rigidly adhered to for elderly housing proposals.
The neighborhood must not be one that is seriously detrimental to family life or in which
substandard dwellings or other undesirable condition predominate.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 19)
20.11 ENVIRONMENTAL REVIEW [24 CFR 983.58]
ACOH activities under the PBV program are subject to HUD environmental regulations in 24 CFR parts 50
and 58. The responsible entity is responsible for performing the federal environmental review under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). ACOH may not enter into an
agreement to enter into a HAP contract nor enter into a HAP contract until ACOH or the responsible entity
has complied with the environmental review requirements.
In the case of existing housing, the responsible entity that is responsible for the environmental review
under 24 CFR part 58 must determine whether or not PBV assistance is categorically excluded from
review under the National Environmental Policy Act and whether or not the assistance is subject to
review under the laws and authorities listed in 24 CFR 58.5.
ACOH may not enter into an agreement to enter into a HAP contract or a HAP contract with an owner,
and ACOH, the owner, and its contractors may not acquire, rehabilitate, convert, lease, repair, dispose of,
demolish, or construct real property or commit or expend program or local funds for PBV activities under
this part, until the environmental review is completed.
ACOH must supply all available, relevant information necessary for the responsible entity to perform any
required environmental review for any site. ACOH must require the owner to carry out mitigating
measures required by the responsible entity (or HUD, if applicable) as a result of the environmental
review.
20.12 HOUSING QUALITY STANDARDS [24 CFR 983.101]
The housing quality standards (HQS) for the tenant-based program, including those for special housing
types, generally apply to the PBV program. These requirements can be found in Chapter 10 of this Plan.
HQS requirements for shared housing, manufactured home space rental, and the homeownership option
do not apply because these housing types are not assisted under the PBV program.
Lead-based Paint [24 CFR 983.101(c)]
The lead-based paint requirements for the tenant-based voucher program do not apply to the PBV
program. Instead, The Lead-based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential
Lead-based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing regulations at
24 CFR part 35, subparts A, B, H, and R, apply to the PBV program.
20.13 HOUSING ACCESSIBILITY FOR PERSONS WITH DISABILITIES
The housing must comply with program accessibility requirements of section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8. ACOH must ensure that the
percentage of accessible dwelling units complies with the requirements of section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794), as implemented by HUD's regulations at 24 CFR 8, subpart C.
Housing first occupied after March 13, 1991, must comply with design and construction requirements of
the Fair Housing Amendments Act of 1988 and implementing regulations at 24 CFR 100.205, as
applicable. (24 CFR 983.102)
20.14 INSPECTING UNITS
Pre-selection Inspection [24 CFR 983.103(a)
ACOH must examine the proposed site before the proposal selection date. If the units to be assisted
already exist, ACOH must inspect all the units before the proposal selection date, and must determine
whether the units substantially comply with HQS. To qualify as existing housing, units must substantially
comply with HQS on the proposal selection date. However, ACOH may not execute the HAP contract until
the units fully comply with HQS.
Pre-HAP Contract Inspections [24 CFR 983.103(b)]
ACOH must inspect each contract unit before execution of the HAP contract. ACOH may not enter into a
HAP contract covering a unit until the unit fully complies with HQS.
Turnover Inspections [24 CFR 983.103(c)]
Before providing assistance to a new family in a contract unit, ACOH must inspect the unit. ACOH may not
provide assistance on behalf of the family until the unit fully complies with HQS.
Annual Inspections [24 CFR 983.103(d)]
At least annually during the term of the HAP contract, ACOH must inspect each unit for which it is
providing assistance.
Other Inspections [24 CFR 983.103(e)]
ACOH must inspect contract units whenever needed to determine that the contract units comply with HQS
and that the owner is providing maintenance, utilities, and other services in accordance with the HAP
contract. ACOH must take into account complaints and any other information coming to its attention in
scheduling inspections.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 20)
ACOH must conduct follow-up inspections needed to determine if the owner (or, if applicable, the family)
has corrected an HQS violation, and must conduct inspections to determine the basis for exercise of
contractual and other remedies for owner or family violation of HQS.
In conducting ACOH supervisory quality control HQS inspections, ACOH should include a representative
sample of both tenant-based and project-based units.
20.15. AGREEMENT TO ENTER INTO HAP CONTRACT
In order to offer PBV assistance in rehabilitated or newly constructed units, ACOH must enter into an
agreement to enter into HAP contract (Agreement) with the owner of the property. The Agreement must be in
the form required by HUD [24 CFR 983.152(a)].
In the Agreement the owner agrees to develop the PBV contract units to comply with HQS, and ACOH
agrees that upon timely completion of such development in accordance with the terms of the Agreement,
ACOH will enter into a HAP contract with the owner for the contract units [24 CFR 983.152(b)].
Content of the Agreement [24 CFR 983.152(c)]
At a minimum, the Agreement must describe the following features of the housing to be developed and
assisted under the PBV program:
Site and the location of the contract units;
Number of contract units by area (size) and number of bedrooms and bathrooms;
Services, maintenance, or equipment to be supplied by the owner without charges in addition to
the rent;
Utilities available to the contract units, including a specification of utility services to be paid by the
owner and utility services to be paid by the tenant;
An indication of whether or not the design and construction requirements of the Fair Housing Act and
section 504 of the Rehabilitation Act of 1973 apply to units under the Agreement. If applicable, any
required work item resulting from these requirements must be included in the description of work to
be performed under the Agreement;
Estimated initial rents to owner for the contract units;
Description of the work to be performed under the Agreement. For rehabilitated units, the
description must include the rehabilitation work write up and, where determined necessary by
ACOH, specifications and plans. For new construction units, the description must include the
working drawings and specifications.
Any additional requirements for quality, architecture, or design over and above HQS.
Execution of the Agreement [24 CFR 983.153, FR Notice 11/24/08]
The Agreement must be executed promptly after ACOH notice of proposal selection to the selected
owner. Generally, ACOH may not enter into the Agreement with the owner until the subsidy layering
review is completed. Likewise, ACOH may not enter into the Agreement until the environmental review is
completed and ACOH has received environmental approval. However, ACOH does not need to conduct a
subsidy layering review in the case of a HAP contract for an existing structure or if the applicable state or
local agency has conducted such a review. Similarly, environmental reviews are not required for existing
structures unless otherwise required by law or regulation.
ACOH Policy
ACOH will enter into the Agreement with the owner within 10 business days of receiving both
environmental approval and notice that subsidy layering requirements have been met, and before
construction or rehabilitation work is started.
20.16 CONDUCT OF DEVELOPMENT WORK Labor Standards [24 CFR 983.154(b)]
If an Agreement covers the development of nine or more contract units (whether or not completed in
stages), the owner and the owner’s contractors and subcontractors must pay Davis-Bacon wages to
laborers and mechanics employed in the development of housing. The HUD-prescribed form of the
Agreement will include the labor standards clauses required by HUD, such as those involving Davis-Bacon
wage rates.
The owner, contractors, and subcontractors must also comply with the Contract Work Hours and Safety
Standards Act, Department of Labor regulations in 29 CFR part 5, and other applicable federal labor
relations laws and regulations. ACOH must monitor compliance with labor standards.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 21)
Equal Opportunity [24 CFR 983.154(c)]
The owner must comply with Section 3 of the Housing and Urban Development Act of 1968 and the
implementing regulations at 24 CFR part 135. The owner must also comply with federal equal employment
opportunity requirements.
Owner Disclosure [24 CFR 983.154(d) and (e)]
The Agreement and HAP contract must include a certification by the owner that the owner and other
project principals are not on the U.S. General Services Administration list of parties excluded from federal
procurement and non-procurement programs.
The owner must also disclose any possible conflict of interest that would be a violation of the Agreement,
the HAP contract, or HUD regulations.
20.17 COMPLETION OF HOUSING
The Agreement must specify the deadlines for completion of the housing, and the owner must develop
and complete the housing in accordance with these deadlines. The Agreement must also specify the
deadline for submission by the owner of the required evidence of completion.
Evidence of Completion [24 CFR 983.155(b)]
At a minimum, the owner must submit the following evidence of completion to ACOH in the form and
manner required by ACOH:
Owner certification that the work has been completed in accordance with HQS and all requirements of
the Agreement; and
Owner certification that the owner has complied with labor standards and equal opportunity
requirements in development of the housing.
At ACOH’s discretion, the Agreement may specify additional documentation that must be submitted by the
owner as evidence of housing completion.
ACOH Policy
ACOH will determine the need for the owner to submit additional documentation as evidence of
housing completion on a case-by-case basis depending on the nature of the PBV project. ACOH
will specify any additional documentation requirements in the Agreement to enter into HAP
contract.
ACOH Acceptance of Completed Units [24 CFR 983.156]
Upon notice from the owner that the housing is completed, ACOH must inspect to determine if the housing
has been completed in accordance with the Agreement, including compliance with HQS and any
additional requirements imposed under the Agreement. ACOH must also determine if the owner has
submitted all required evidence of completion.
If the work has not been completed in accordance with the Agreement, ACOH must not enter into the HAP
contract.
If ACOH determines the work has been completed in accordance with the Agreement and that the owner
has submitted all required evidence of completion, ACOH must submit the HAP contract for execution by
the owner and must then execute the HAP contract.
20.18 HOUSING ASSISTANCE PAYMENTS CONTRACT (HAP)
ACOH must enter into a HAP contract with an owner for units that are receiving PBV assistance. The
purpose of the HAP contract is to provide housing assistance payments for eligible families. Housing
assistance is paid for contract units leased and occupied by eligible families during the HAP contract term.
The HAP contract must be in the form required by HUD [24 CFR 983.202].
Contract Information [24 CFR 983.203, FR Notice 11/24/08]
The HAP contract must specify the following information:
The total number of contract units by number of bedrooms;
The project’s name, street address, city or county, state and zip code, block and lot number (if
known), and any other information necessary to clearly identify the site and the building;
The number of contract units in each building, the location of each contract unit, the area of each
contract unit, and the number of bedrooms and bathrooms in each contract unit;
Services, maintenance, and equipment to be supplied by the owner and included in the rent to
owner;
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 22)
Utilities available to the contract units, including a specification of utility services to be paid by the
owner (included in rent) and utility services to be paid by the tenant;
Features provided to comply with program accessibility requirements of Section 504 of the
Rehabilitation Act of 1973 and implementing regulations at 24 CFR part 8;
The HAP contract term;
The number of units in any project that will exceed the 25 percent per project cap, which will be
set-aside for occupancy by qualifying families; and
The initial rent to owner for the first 12 months of the HAP contract term.
Execution of the HAP Contract [24 CFR 983.204]
ACOH may not enter into a HAP contract until each contract unit has been inspected and ACOH has
determined that the unit complies with the Housing Quality Standards (HQS). For existing housing, the
HAP contract must be executed promptly after ACOH selects the owner proposal and inspects the
housing units. For newly constructed or rehabilitated housing the HAP contract must be executed after
ACOH has inspected the completed units and has determined that the units have been completed in
accordance with the agreement to enter into HAP, and the owner furnishes all required evidence of
completion.
ACOH Policy
For existing housing, the HAP contract will be executed within 10 business days of ACOH
determining that all units pass HQS.
For rehabilitated or newly constructed housing, the HAP contract will be executed within 10
business days of ACOH determining that the units have been completed in accordance with the
agreement to enter into HAP, all units meet HQS, and the owner has submitted all required
evidence of completion.
Term of HAP Contract [FR Notice 11/24/08]
ACOH may enter into a HAP contract with an owner for an initial term of no less than one year and no
more than 15 years.
ACOH Policy
The term of all PBV HAP contracts will be negotiated with the owner on a case-by-case basis.
At any time before expiration of the HAP contract, ACOH may extend the term of the contract for an
additional term of up to 15 years if ACOH determines an extension is appropriate to continue providing
affordable housing for low-income families or to expand housing opportunities. Subsequent extensions are
subject to the same limitations. All extensions must be on the form and subject to the conditions
prescribed by HUD at the time of the extension.
ACOH Policy
When determining whether or not to extend an expiring PBV contract, ACOH will consider several
factors including, but not limited to:
The cost of extending the contract and the amount of available budget authority; The
condition of the contract units;
The owner’s record of compliance with obligations under the HAP contract and lease(s);
Whether the location of the units continues to support the goals of deconcentrating
poverty and expanding housing opportunities; and
Whether the funding could be used more appropriately for tenant-based assistance.
Termination by ACOH [24 CFR 983.205(c)]
The HAP contract must provide that the term of ACOH’s contractual commitment is subject to the
availability of sufficient appropriated funding as determined by HUD or by ACOH in accordance with HUD
instructions. For these purposes, sufficient funding means the availability of appropriations, and of funding
under the ACC from such appropriations, to make full payment of housing assistance payments payable
to the owner for any contract year in accordance with the terms of the HAP contract.
If it is determined that there may not be sufficient funding to continue housing assistance payments for all
contract units and for the full term of the HAP contract, ACOH may terminate the HAP contract by notice
to the owner. The termination must be implemented in accordance with HUD instructions.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 23)
Termination by Owner [24 CFR 983.205(d), FR Notice 11/24/08]
If in accordance with program requirements the amount of rent to an owner for any contract unit is
reduced below the amount of the rent to owner at the beginning of the HAP contract term, the owner may
terminate the HAP contract by giving notice to ACOH. In this case, families living in the contract units must
be offered tenant-based assistance.
At their discretion ACOH may specify in the HAP contract that the maximum rent on a unit will not be less
than the initial rent.
Remedies for HQS Violations [24 CFR 983.207(b)]
ACOH may not make any HAP payment to the owner for a contract unit during any period in which the unit
does not comply with HQS. If ACOH determines that a contract does not comply with HQS, ACOH may
exercise any of its remedies under the HAP contract, for any or all of the contract units. Available
remedies include termination of housing assistance payments, abatement or reduction of housing
assistance payments, reduction of contract units, and termination of the HAP contract.
ACOH Policy
ACOH will abate and terminate PBV HAP contracts for non-compliance with HQS in accordance with
the policies used in the tenant-based voucher program. These policies are contained in Chapter 10 of
this Plan.
AMENDMENTS TO THE HAP CONTRACT Substitution of Contract Units [24 CFR 983.206(a)]
At ACOH’s discretion and subject to all PBV requirements, the HAP contract may be amended to
substitute a different unit with the same number of bedrooms in the same building for a previously covered
contract unit. Before any such substitution can take place, ACOH must inspect the proposed unit and
determine the reasonable rent for the unit.
Addition of Contract Units [24 CFR 983.206(b)]
At ACOH’s discretion and subject to the restrictions on the number of dwelling units that can receive PBV
assistance per building and on the overall size of ACOH’s PBV program, a HAP contract may be amended
during the three-year period following the execution date of the HAP contract to add additional PBV units
in the same building. This type of amendment is subject to all PBV program requirements except that a
new PBV proposal is not required.
ACOH Policy
ACOH will consider adding contract units to the HAP contract when ACOH determines that
additional housing is needed to serve eligible low-income families. Circumstances may include,
but are not limited to:
The local housing inventory is reduced due to a disaster (either due to loss of housing
units, or an influx of displaced families); and
Voucher holders are having difficulty finding units that meet program requirements.
Hap Contract Year, Anniversary and Expiration Dates [24 Cfr 983.206(C) and 983.302(E)]
The HAP contract year is the period of 12 calendar months preceding each annual anniversary of the HAP
contract during the HAP contract term. The initial contract year is calculated from the first day of the first
calendar month of the HAP contract term.
The annual anniversary of the HAP contract is the first day of the first calendar month after the end of the
preceding contract year.
There is a single annual anniversary and expiration date for all units under a particular HAP contract, even
in cases where contract units are placed under the HAP contract in stages (on different dates) or units are
added by amendment. The anniversary and expiration dates for all units coincide with the dates for the
contract units that were originally placed under contract.
OWNER RESPONSIBILITIES UNDER THE HAP [24 CFR 983.208 and 983.209]
When the owner executes the HAP contract s/he certifies that at such execution and at all times during
the term of the HAP contract:
All contract units are in good condition and the owner is maintaining the premises and contract
units in accordance with HQS;
The owner is providing all services, maintenance, equipment and utilities as agreed to under the
HAP contract and the leases;
Each contract unit for which the owner is receiving HAP, is leased to an eligible family referred by
ACOH, and the lease is in accordance with the HAP contract and HUD requirements;
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(Page 24)
To the best of the owner’s knowledge the family resides in the contract unit for which the owner is
receiving HAP, and the unit is the family’s only residence;
The owner (including a principal or other interested party) is not the spouse, parent, child,
grandparent, grandchild, sister, or brother of any member of a family residing in a contract unit;
The amount of the HAP the owner is receiving is correct under the HAP contract;
The rent for contract units does not exceed rents charged by the owner for comparable
unassisted units;
Except for HAP and tenant rent, the owner has not received and will not receive any other
payment or consideration for rental of the contract unit; and
The family does not own or have any interest in the contract unit.
ADDITIONAL HAP REQUIREMENTS
Housing Quality and Design Requirements [24 CFR 983.101(e) and 983.207(a)]
The owner is required to maintain and operate the contract units and premises in accordance with HQS,
including performance of ordinary and extraordinary maintenance. The owner must provide all the
services, maintenance, equipment, and utilities specified in the HAP contract with ACOH and in the lease
with each assisted family. In addition, maintenance, replacement and redecoration must be in accordance
with the standard practice for the building as established by the owner.
ACOH may elect to establish additional requirements for quality, architecture, or design of PBV housing.
Any such additional requirements must be specified in the Agreement to enter into a HAP contract and the
HAP contract. These requirements must be in addition to, not in place of, compliance with HQS.
ACOH Policy
ACOH will identify the need for any special features on a case-by-case basis depending on the
intended occupancy of the PBV project. ACOH will specify any special design standards or
additional requirements in the invitation for PBV proposals, the agreement to enter into HAP
contract, and the HAP contract.
Vacancy Payments [24 CFR 983.352(b)]
At the discretion of ACOH, the HAP contract may provide for vacancy payments to the owner for ACOH-
determined period of vacancy extending from the beginning of the first calendar month after the move-out
month for a period not exceeding two full months following the move-out month. The amount of the
vacancy payment will be determined by ACOH and cannot exceed the monthly rent to owner under the
assisted lease, minus any portion of the rental payment received by the owner (including amounts
available from the tenant’s security deposit).
ACOH Policy
ACOH will not provide vacancy payments to the owner. Language regarding the allowance for a
vacancy payment will not be a part of the HAP contract.
20.19 ELIGIBILITY FOR PBV ASSISTANCE [24 CFR 983.251(a) and (b)]
ACOH may select families for the PBV program from those who are participants in ACOH’s tenant-based
voucher program and from those who have applied for admission to the voucher program. For voucher
participants, eligibility was determined at original admission to the voucher program and does not need to
be redetermined at the commencement of PBV assistance. For all others, eligibility for admission must be
determined at the commencement of PBV assistance.
Applicants for PBV assistance must meet the same eligibility requirements as applicants for the tenant-
based voucher program. Applicants must qualify as a family as defined by HUD and ACOH, have income
at or below HUD-specified income limits, and qualify on the basis of citizenship or the eligible immigration
status of family members [24 CFR 982.201(a) and 24 CFR 983.2(a)]. In addition, an applicant family must
provide social security information for family members [24 CFR 5.216 and 5.218] and consent to ACOH’s
collection and use of family information regarding income, expenses, and family composition [24 CFR
5.230]. An applicant family must also meet HUD requirements related to current or past criminal activity.
ACOH Policy
ACOH will determine an applicant family’s eligibility for the PBV program in accordance with the
policies in Chapter 2 (Eligibility for Admission), Chapter 3 (Applying for Admission) and Chapter 15
(Denial and Termination of Assistance).
In-Place Families [24 CFR 983.251(b)]
An eligible family residing in a proposed PBV contract unit on the date the proposal is selected by ACOH
is considered an “in-place family.” These families are afforded protection from displacement under the
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(Page 25)
PBV rule. If a unit to be placed under contract (either an existing unit or a unit requiring rehabilitation) is
occupied by an eligible family on the date the proposal is selected, the in-place family must be placed on
ACOH’s waiting list. Once the family’s continued eligibility is determined (ACOH may deny assistance to
an in-place family for the grounds specified in 24 CFR 982.552 and 982.553), the family must be given an
absolute selection preference and ACOH must refer these families to the project owner for an
appropriately sized PBV unit in the project. Admission of eligible in-place families is not subject to income
targeting requirements.
This regulatory protection from displacement does not apply to families that are not eligible to participate
in the program on the proposal selection date.
Organization of the Waiting List [24 CFR 983.251(c)]
ACOH may establish a separate waiting list for PBV units or it may use the same waiting list for both
tenant-based and PBV assistance. ACOH may also merge the PBV waiting list with a waiting list for other
assisted housing programs offered by ACOH. If ACOH chooses to offer a separate waiting list for PBV
assistance, ACOH must offer to place applicants who are listed on the tenant-based waiting list on the
waiting list for PBV assistance.
If ACOH decides to establish a separate PBV waiting list, ACOH may use a single waiting list for ACOH’s
whole PBV program, or it may establish separate waiting lists for PBV units in particular projects or
buildings or for sets of such units.
ACOH Policy
ACOH will establish and manage separate waiting lists for each of the projects that are receiving
PBV assistance.
Selection from the Waiting List [24 CFR 983.251(c)]
Applicants who will occupy units with PBV assistance must be selected from ACOH’s waiting list. ACOH
may establish selection criteria or preferences for occupancy of particular PBV units. ACOH may place
families referred by the project owner on its PBV waiting list.
Income Targeting [24 CFR 983.251(c)(6)]
At least 75 percent of the families admitted to ACOH’s tenant-based and project-based voucher programs
during ACOH fiscal year from the waiting list must be extremely-low income families. The income targeting
requirement applies to the total of admissions to both programs.
Units with Accessibility Features [24 CFR 983.251(c)(7)]
When selecting families to occupy PBV units that have special accessibility features for persons with
disabilities, ACOH must first refer families who require such features to the owner.
Preferences [24 CFR 983.251(d) , FR Notice 11/24/08]
ACOH may use the same selection preferences that are used for the tenant-based voucher program,
establish selection criteria or preferences for the PBV program as a whole, or for occupancy of particular
PBV developments or units. ACOH must provide an absolute selection preference for eligible in-place
families as described in Section 20-VI.B. above.
Although ACOH is prohibited from granting preferences to persons with a specific disability, ACOH may
give preference to disabled families who need services offered at a particular project or site if the
preference is limited to families (including individuals):
With disabilities that significantly interfere with their ability to obtain and maintain themselves in
housing;
Who, without appropriate supportive services, will not be able to obtain or maintain themselves in
housing; and
For whom such services cannot be provided in a non-segregated setting.
In advertising such a project, the owner may advertise the project as offering services for a particular type
of disability; however, the project must be open to all otherwise eligible disabled persons who may benefit
from services provided in the project. In these projects, disabled residents may not be required to accept
the particular services offered as a condition of occupancy.
If ACOH has projects with more than 25 percent of the units receiving project-based assistance because
those projects include “excepted units” (units specifically made available for elderly or disabled families, or
families receiving supportive services), ACOH must give preference to such families when referring
families to these units [24 CFR 983.261(b)].
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 26)
ACOH Policy
ACOH may establish, at its discretion, selection criteria or preferences for occupancy of particular
PBV developments, buildings, or units based on the nature of the development and services
offered and consistent with the goals established for the PBV program as stated in Section 20.1.
In the event that ACOH establishes a preference for homeless persons/families the following definitions
shall apply:
An individual or family who lacks a fixed, regular, and adequate nighttime residence, meaning:
a. An individual or family with a primary nighttime residence that is a public or private place
not designed for or ordinarily used as a regular sleeping accommodation for human
beings, including a car, park, abandoned building, bus or train station, airport, or camping
ground; or
b. An individual or family living in a supervised publicly or privately operated shelter
designated to provide temporary living arrangements (including congregate shelters,
transitional housing, and hotels and motels paid for by charitable organizations or by
federal, state, or local government programs for low- income individuals); or
c. An individual who is exiting an institution where he or she resided for 90 days or less and
who resided in an emergency shelter or place not meant for human habitation
immediately before entering that institution;
Any individual or family who:
i. Is fleeing, or is attempting to flee, domestic violence, dating violence, sexual
assault, stalking, or other dangerous or life-threatening conditions that relate to violence
against the individual or a family member, including a child, that has either taken place
within the individual’s or family’s primary nighttime residence or has made the individual or
family afraid to return to their primary nighttime residence; and
ii. Has no other residence; and
iii. Lacks the resources or support networks, e.g., family, friends, and faith- based or other
social networks, to obtain other permanent housing
20.20 OFFER OF PBV ASSISTANCE
Refusal of Offer [24 CFR 983.251(e)(3)]
ACOH is prohibited from taking any of the following actions against a family who has applied for, received,
or refused an offer of PBV assistance:
Refuse to list the applicant on the waiting list for tenant-based voucher assistance;
Deny any admission preference for which the applicant qualifies;
Change the applicant’s place on the waiting list based on preference, date, and time of
application, or other factors affecting selection under ACOH’s selection policy;
Remove the applicant from the tenant-based voucher waiting list.
Disapproval by Landlord [24 CFR 983.251(e)(2)]
If a PBV owner rejects a family for admission to the owner’s units, such rejection may not affect the
family’s position on the tenant-based voucher waiting list.
Acceptance of Offer [24 CFR 983.252]
Family Briefing
When a family accepts an offer for PBV assistance, ACOH must give the family an oral briefing. The
briefing must include information on how the program works and the responsibilities of the family and
owner. In addition to the oral briefing, ACOH must provide a briefing packet that explains how ACOH
determines the total tenant payment for a family, the family obligations under the program, and applicable
fair housing information.
Persons with Disabilities
If an applicant family’s head or spouse is disabled, ACOH must assure effective communication, in
accordance with 24 CFR 8.6, in conducting the oral briefing and in providing the written information
packet. This may include making alternative formats available (see Chapter 2). In addition, ACOH must
have a mechanism for referring a family that includes a member with a mobility impairment to an
appropriate accessible PBV unit.
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(Page 27)
Persons with Limited English Proficiency
ACOH should take reasonable steps to assure meaningful access by persons with limited English
proficiency in accordance with Title VI of the Civil Rights Act of 1964 and Executive Order 13166 (see
Chapter 2).
20.21 OWNER SELECTION OF TENANTS
The owner is responsible for developing written tenant selection procedures that are consistent with the
purpose of improving housing opportunities for very low-income families and reasonably related to
program eligibility and an applicant’s ability to fulfill their obligations under the lease. An owner must
promptly notify in writing any rejected applicant of the grounds for any rejection [24 CFR 983.253(b)].
Leasing [24 CFR 983.253(a)]
During the term of the HAP contract, the owner must lease contract units to eligible families that are
selected and referred by ACOH from ACOH’s waiting list. The contract unit leased to the family must be
the appropriate size unit for the size of the family, based on ACOH’s subsidy standards.
Filling Vacancies [24 CFR 983.254(a)]
The owner must promptly notify ACOH of any vacancy or expected vacancy in a contract unit. After
receiving such notice, ACOH must make every reasonable effort to promptly refer a sufficient number of
families for the owner to fill such vacancies. ACOH and the owner must make reasonable efforts to
minimize the likelihood and length of any vacancy.
ACOH Policy
The owner must notify ACOH in writing (mail, fax, or e-mail) within 5 business days of learning
about any vacancy or expected vacancy.
ACOH will make every reasonable effort to refer families to the owner within 10 business days of
receiving such notice from the owner.
Reduction in HAP Contract Units Due to Vacancies [24 CFR 983.254(b)]
If any contract units have been vacant for 120 or more days since owner notice of the vacancy, ACOH
may give notice to the owner amending the HAP contract to reduce the number of contract units by
subtracting the number of contract units (according to the bedroom size) that have been vacant for this
period.
ACOH Policy
If any contract units have been vacant for 120 days, ACOH will give notice to the owner that the
HAP contract will be amended to reduce the number of contract units that have been vacant for
this period. ACOH will provide the notice to the owner within 10 business days of the 120th day of
the vacancy. The amendment to the HAP contract will be effective the 1st day of the month
following the date of ACOH’s notice.
20.22 TENANT SCREENING [24 CFR 983.255]
ACOH is not responsible or liable to the owner or any other person for the family’s behavior or suitability
for tenancy. However, ACOH may opt to screen applicants for family behavior or suitability for tenancy and
may deny applicants based on such screening.
ACOH Policy
ACOH will not conduct screening to determine a PBV applicant family’s suitability for tenancy.
ACOH must provide the owner with an applicant family’s current and prior address (as shown in
ACOH records) and the name and address (if known by ACOH) of the family’s current landlord and any
prior landlords.
In addition, ACOH may offer the owner other information ACOH may have about a family, including
information about the tenancy history of family members or about drug trafficking and criminal activity by
family members. ACOH must provide applicant families a description of ACOH policy on providing
information to owners, and ACOH must give the same types of information to all owners.
ACOH Policy
ACOH will inform owners of their responsibility to screen prospective tenants, and will provide
owners with the required known name and address information, at the time of the turnover HQS
inspection or before. ACOH will not provide any additional information to the owner, such as
tenancy history, criminal history, etc.
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(Page 28)
Owner Responsibility
The owner is responsible for screening and selection of the family to occupy the owner’s unit. When
screening families the owner may consider a family’s background with respect to the following factors:
Payment of rent and utility bills;
Caring for a unit and premises;
Respecting the rights of other residents to the peaceful enjoyment of their housing;
Drug-related criminal activity or other criminal activity that is a threat to the health, safety, or
property of others; and
Compliance with other essential conditions of tenancy.
20.23 LEASE [24 CFR 983.256]
After an applicant has been selected from the waiting list, determined eligible by ACOH, referred to an
owner and determined suitable by the owner, the family will sign the lease and occupancy of the unit will
begin. The tenant must have legal capacity to enter a lease under state and local law. Legal capacity
means that the tenant is bound by the terms of the lease and may enforce the terms of the lease against
the owner.
Form of Lease [24 CFR 983.256(b)]
The tenant and the owner must enter into a written lease agreement that is signed by both parties. If an
owner uses a standard lease form for rental units to unassisted tenants in the locality or premises, the
same lease must be used for assisted tenants, except that the lease must include a HUD-required
tenancy addendum. The tenancy addendum must include, word-for-word, all provisions required by HUD.
If the owner does not use a standard lease form for rental to unassisted tenants, the owner may use
another form of lease, such as ACOH model lease.
ACOH may review the owner’s lease form to determine if the lease complies with state and local law. If
ACOH determines that the lease does not comply with state or local law, ACOH may decline to approve
the tenancy.
ACOH Policy
ACOH will review the owner’s lease for compliance with state or local law in cases when a
standard lease form is not used.
Lease Requirements [24 CFR 983.256(c)]
The lease for a PBV unit must specify all of the following information:
The names of the owner and the tenant;
The unit rented (address, apartment number, if any, and any other information needed to identify
the leased contract unit);
The term of the lease (initial term and any provision for renewal);
The amount of the tenant rent to owner, which is subject to change during the term of the lease in
accordance with HUD requirements;
A specification of the services, maintenance, equipment, and utilities that will be provide by the
owner; and
The amount of any charges for food, furniture, or supportive services.
Tenancy Addendum [24 CFR 983.256(d)]
The tenancy addendum in the lease must state:
The program tenancy requirements;
The composition of the household as approved by ACOH (the names of family members and any
ACOH-approved live-in aide);
All provisions in the HUD-required tenancy addendum must be included in the lease. The terms of
the tenancy addendum prevail over other provisions of the lease.
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(Page 29)
Initial Term and Lease Renewal [24 CFR 983.256(f) and 983.257(b)]
The initial lease term must be for at least one year. Upon expiration of the lease, an owner may renew the
lease, refuse to renew the lease for “good cause,” or refuse to renew the lease without good cause. If the
owner refuses to renew the lease without good cause, ACOH must provide the family with a tenant -based
voucher and remove the unit from the PBV HAP contract.
Changes in the Lease [24 CFR 983.256(e)]
If the tenant and owner agree to any change in the lease, the change must be in writing, and the owner
must immediately give ACOH a copy of all changes.
The owner must notify ACOH in advance of any proposed change in the lease regarding the allocation of
tenant and owner responsibilities for utilities. Such changes may only be made if approved by ACOH and
in accordance with the terms of the lease relating to its amendment. ACOH must redetermine reasonable
rent, in accordance with program requirements, based on any change in the allocation of the responsibility
for utilities between the owner and the tenant. The redetermined reasonable rent will be used in
calculation of the rent to owner from the effective date of the change.
Owner Termination of Tenancy [24 CFR 983.257]
With two exceptions, the owner of a PBV unit may terminate tenancy for the same reasons an owner may
in the tenant-based voucher program (see Section 12-III.B. and 24 CFR 982.310). In the PBV program,
terminating tenancy for “good cause” does not include doing so for a business or economic reason, or a
desire to use the unit for personal or family use or other non-residential purpose.
Non-Compliance with Supportive Services Requirement [24 CFR 983.257(c), FR Notice 11/24/08]
If a family is living in a project-based unit that is except from the 25 percent per project cap on project-
basing because of participation in a supportive services program (e.g., Family Self -Sufficiency), and the
family fails to complete its supportive services requirement without good cause, such failure is grounds for
lease termination by the owner.
Tenant Absence from the Unit [24 CFR 983.256(g) and 982.312(a)]
The owner may specify in the lease a maximum period of tenant absence from the unit that is shorter than
the maximum period permitted by ACOH policy. According to program requirements, the family’s
assistance must be terminated if they are absent from the unit for more than 180 consecutive days.
Security Deposits [24 CFR 983.258]
The owner may collect a security deposit from the tenant. ACOH may prohibit security deposits in excess of
private market practice, or in excess of amounts charged by the owner to unassisted tenants.
ACOH Policy
ACOH will allow the owner to collect a security deposit amount the owner determines is
appropriate and is consistent with the area market. The security deposit amount must be in
compliance with the Virginia Residential Landlord and Tenant Act.
When the tenant moves out of a contract unit, the owner, subject to state and local law, may use the
security deposit, including any interest on the deposit, in accordance with the lease, as reimbursement for
any unpaid tenant rent, damages to the unit, or other amounts owed by the tenant under the lease.
The owner must give the tenant a written list of all items charged against the security deposit and the
amount of each item. After deducting the amount used to reimburse the owner, the owner must promptly
refund the full amount of the balance to the tenant.
If the security deposit does not cover the amount owed by the tenant under the lease, the owner may seek
to collect the balance form the tenant. ACOH has no liability or responsibility for payment of any amount
owed by the family to the owner.
20.24 MOVES
Overcrowded, Under-Occupied, and Accessible Units [24 CFR 983.259]
If ACOH determines that a family is occupying a wrong size unit, based on ACOH’s subsidy standards, or
a unit with accessibility features that the family does not require, and the unit is needed by a family that
does require the features, ACOH must promptly notify the family and the owner of this determination, and
ACOH must offer the family the opportunity to receive continued housing assistance in another unit.
ACOH Policy
ACOH will notify the family and the owner of the family’s need to move based on the occupancy of
a wrong-size or accessible unit within 10 business days of ACOH’s determination. ACOH will offer
the family the following types of continued assistance in the following order, based on the
availability of assistance:
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(Page 30)
PBV assistance in the same building or project;
PBV assistance in another project; and
Tenant-based voucher assistance.
If ACOH offers the family a tenant-based voucher, ACOH must terminate the housing assistance
payments for a wrong-sized or accessible unit at expiration of the term of the family’s voucher (including
any extension granted by ACOH).
If ACOH offers the family another form of assistance that is not a tenant-based voucher, and the family
does not accept the offer, does not move out of the PBV unit within a reasonable time as determined by
ACOH, or both, ACOH must terminate the housing assistance payments for the unit at the expiration of a
reasonable period as determined by ACOH.
ACOH Policy
When ACOH offers a family another form of assistance that is not a tenant-based voucher, the
family will be given 30 days from the date of the offer to accept the offer and move out of the PBV
unit. If the family does not move out within this 30-day time frame, ACOH will terminate the
housing assistance payments at the expiration of this 30-day period.
ACOH may make exceptions to this 30-day period if needed for reasons beyond the family’s
control such as death, serious illness, or other medical emergency of a family member.
Family Right to Move [24 CFR 983.260]
The family may terminate the lease at any time after the first year of occupancy. The family must give
advance written notice to the owner in accordance with the lease and provide a copy of such notice to
ACOH. If the family wishes to move with continued tenant-based assistance, the family must contact
ACOH to request the rental assistance prior to providing notice to terminate the lease.
If the family terminates the lease in accordance with these requirements, ACOH is required to offer the
family the opportunity for continued tenant-based assistance, in the form of a voucher or other comparable
tenant-based rental assistance. If voucher or other comparable tenant-based assistance is not
immediately available upon termination of the family’s lease in the PBV unit,
ACOH must give the family priority to receive the next available opportunity for continued tenant-based
assistance.
If the family terminates the assisted lease before the end of the first year, the family relinquishes the
opportunity for continued tenant-based assistance.
20.25 DETERMINING RENT TO OWNER
The amount of the initial rent to an owner of units receiving PBV assistance is established at the beginning
of the HAP contract term. Although for rehabilitated or newly constructed housing, the agreement to enter
into HAP Contract (Agreement) states the estimated amount of the initial rent to owner, the actual amount
of the initial rent to owner is established at the beginning of the HAP contract term.
During the tem of the HAP contract, the rent to owner is redetermined at the owner’s request in
accordance with program requirements, and at such time that there is a five percent or greater decrease
in the published FMR.
Rent Limits [24 CFR 983.301]
Except for certain tax credit units (discussed below), the rent to owner must not exceed the lowest of the
following amounts:
An amount determined by ACOH, not to exceed 110 percent of the applicable fair market rent (or any
HUD-approved exception payment standard) for the unit bedroom size minus any utility allowance;
The reasonable rent; or
The rent requested by the owner.
Certain Tax Credit Units [24 CFR 983.301(c), FR Notice 11/24/08]
For certain tax credit units, the rent limits are determined differently than for other PBV units. These
different limits apply to contract units that meet all of the following criteria:
The contract unit receives a low-income housing tax credit under the Internal Revenue Code of
1986;
The contract unit is not located in a qualified census tract;
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(Page 31)
There are comparable tax credit units of the same bedroom size as the contract unit in the same
building, and the comparable tax credit units do not have any form of rental assistance other than
the tax credit; and
The tax credit rent exceeds ACOH-determined amount (not to exceed 110 percent of the fair
market rent or any approved exception payment standard);
For contract units that meet all of these criteria, the rent to owner must not exceed the lowest of:
The tax credit rent minus any utility allowance;
The reasonable rent; or
The rent requested by the owner.
However, ACOH is permitted to use the higher Section 8 rent for a tax credit unit if the tax credit rent is
less than the amount that would be permitted under Section 8. In these cases, Section 8 rent
reasonableness requirements must continue to be met.
Definitions
A qualified census tract is any census tract (or equivalent geographic area defined by the Bureau of the
Census) in which at least 50 percent of households have an income of less than 60 percent of Area
Median Gross Income (AMGI), or where the poverty rate is at least 25 percent and where the census tract
is designated as a qualified census tract by HUD.
Tax credit rent is the rent charged for comparable units of the same bedroom size in the building that also
receive the low-income housing tax credit but do not have any additional rental assistance (e.g., tenant-
based voucher assistance).
Use of FMRs, Exception Payment Standards, and Utility Allowances [24 CFR 983.301(f)]
When determining the initial rent to owner, ACOH must use the most recently published FMR in effect and
the utility allowance schedule in effect at execution of the HAP contract. When redetermining the rent to
owner, ACOH must use the most recently published FMR and the utility allowance schedule in effect at
the time of redetermination. At its discretion, ACOH may for initial rent, use the amounts in effect at any
time during the 30-day period immediately before the beginning date of the HAP contract, or for
redeterminations of rent, the 30-day period immediately before the redetermination date.
Any HUD-approved exception payment standard amount under the tenant-based voucher program also
applies to the project-based voucher program. HUD will not approve a different exception payment stand
amount for use in the PBV program.
Likewise, ACOH may not establish or apply different utility allowance amounts for the PBV program. The
same utility allowance schedule applies to both the tenant-based and project-based voucher programs.
ACOH Policy
ACOH will use the most recently published FMR and utility allowances in effect at the time of the
execution of the HAP contract subject to budget allocations and availability of funds.
Redetermination of Rent [24 CFR 983.302, FR Notice 11/24/08]
ACOH must redetermine the rent to owner upon the owner’s request or when there is a five percent or
greater decrease in the published FMR.
Rent Increase
If an owner wishes to request an increase in the rent to owner from ACOH, it must be requested at the
annual anniversary of the HAP contract. The request must be in writing and in the form and manner
required by ACOH. ACOH may only make rent increases in accordance with the rent limits described
previously. There are no provisions in the PBV program for special adjustments (e.g., adjustments that
reflect increases in the actual and necessary expenses of owning and maintaining the units which have
resulted from substantial general increases in real property taxes, utility rates, or similar costs).
ACOH Policy
An owner’s request for a rent increase must be submitted to ACOH at least 60 days prior to the
anniversary date of the HAP contract, and must include the new rent amount the owner is
proposing.
ACOH may not approve and the owner may not receive any increase of rent to owner until and unless the
owner has complied with requirements of the HAP contract, including compliance with HQS. The owner
may not receive any retroactive increase of rent for any period of noncompliance.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 32)
Rent Decrease
If there is a decrease in the rent to owner, as established in accordance with program requirements such
as a change in the FMR or exception payment standard, or reasonable rent amount, the rent to owner
must be decreased regardless of whether the owner requested a rent adjustment. However, ACOH may
stipulate in the HAP contract that the maximum rent on a unit will not be less than the initial rent.
Notice of Rent Change
The rent to owner is redetermined by written notice by ACOH to the owner specifying the amount of the
redetermined rent. ACOH notice of rent adjustment constitutes an amendment of the rent to owner
specified in the HAP contract. The adjusted amount of rent to owner applies for the period of 12 calendar
months from the annual anniversary of the HAP contract.
ACOH Policy
ACOH will provide the owner with at least 30 days written notice of any change in the amount of
rent to owner.
20.26 REASONABLE RENT [24 CFR 983.303]
At the time the initial rent is established and all times during the term of the HAP contract, the rent to
owner for a contract unit may not exceed the reasonable rent for the unit as determined by ACOH.
When Rent Reasonable Determinations are Required
ACOH must redetermine the reasonable rent for a unit receiving PBV assistance whenever any of the
following occur:
There is a five percent or greater decrease in the published FMR in effect 60 days before the contract
anniversary (for the unit sizes specified in the HAP contract) as compared with the FMR that was in
effect one year before the contract anniversary date;
ACOH approves a change in the allocation of responsibility for utilities between the owner and the
tenant;
The HAP contract is amended to substitute a different contract unit in the same building; or
There is any other change that may substantially affect the reasonable rent.
How to Determine Reasonable Rent
The reasonable rent of a unit receiving PBV assistance must be determined by comparison to rent for
other comparable unassisted units. When making this determination, ACOH must consider factors that
affect market rent. Such factors include the location, quality, size, type and age of the unit, as well as the
amenities, housing services maintenance, and utilities to be provided by the owner.
Comparability Analysis
For each unit, the comparability analysis must use at least three comparable units in the private
unassisted market. This may include units in the premises or project that is receiving project-based
assistance. The analysis must show how the reasonable rent was determined, including major differences
between the contract units and comparable unassisted units, and must be retained by ACOH. The
comparability analysis may be performed by ACOH staff or by another qualified person or entity. Those
who conduct these analyses or are involved in determining the housing assistance payment based on the
analyses may not have any direct or indirect interest in the property.
Owner Certification of Reasonable Rent
By accepting each monthly housing assistance payment, the owner certifies that the rent to owner is not
more than rent charged by the owner for other comparable unassisted units in the premises. At any time,
ACOH may require the owner to submit information on rents charged by the owner for other units in the
premises or elsewhere.
20.27 EFFECT OF OTHER SUBSIDY AND RENT CONTROL
In addition to the rent limits discussed in Section 20-VIII.B above, other restrictions may limit the amount of
rent to owner in a PBV unit. In addition, certain types of subsidized housing are not even eligible to receive
PBV assistance (see Section 20-II.D).
Other Subsidy [24 CFR 983.304]
At its discretion, ACOH may reduce the initial rent to owner because of other governmental subsidies,
including grants and other subsidized financing.
For units receiving assistance under the HOME program, rents may not exceed rent limits as required by
that program.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 33)
For units in any of the following types of federally subsidized projects, the rent to owner may not exceed
the subsidized rent (basic rent) or tax credit rent as determined in accordance with requirements for the
applicable federal program:
An insured or non-insured Section 236 project;
A formerly insured or non-insured Section 236 project that continues to receive Interest Reduction
Payment following a decoupling action;
A Section 221(d)(3) below market interest rate (BMIR) project;
A Section 515 project of the Rural Housing Service;
Any other type of federally subsidized project specified by HUD.
Combining Subsidy
Rent to owner may not exceed any limitation required to comply with HUD subsidy layering requirements.
Rent Control [24 CFR 983.305]
In addition to the rent limits set by PBV program regulations, the amount of rent to owner may also be
subject to rent control or other limits under local, state, or federal law.
20.28 PAYMENTS TO OWNER
Housing Assistance Payments [24 CFR 983.351]
During the term of the HAP contract, ACOH must make housing assistance payments to the owner in
accordance with the terms of the HAP contract. During the term of the HAP contract, payments must be
made for each month that a contract unit complies with HQS and is leased to and occupied by an eligible
family. The housing assistance payment must be paid to the owner on or about the first day of the month
for which payment is due, unless the owner and ACOH agree on a later date.
Except for discretionary vacancy payments, ACOH may not make any housing assistance payment to the
owner for any month after the month when the family moves out of the unit (even if household goods or
property are left in the unit).
The amount of the housing assistance payment by ACOH is the rent to owner minus the tenant rent (total
tenant payment minus the utility allowance).
In order to receive housing assistance payments, the owner must comply with all provisions of the HAP
contract. Unless the owner complies with all provisions of the HAP contract, the owner does not have a
right to receive housing assistance payments.
20.29 VACANCY PAYMENTS [24 CFR 983.352]
If an assisted family moves out of the unit, the owner may keep the housing assistance payment for the
calendar month when the family moves out. However, the owner may not keep the payment if ACOH
determines that the vacancy is the owner’s fault.
ACOH Policy
If ACOH determines that the owner is responsible for a vacancy and, as a result, is not entitled to
the keep the housing assistance payment, ACOH will notify the landlord of the amount of housing
assistance payment that the owner must repay. ACOH will require the owner to repay the amount
owed.
At the discretion of ACOH, the HAP contract may provide for vacancy payments to the owner. ACOH may
only make vacancy payments if:
The owner gives ACOH prompt, written notice certifying that the family has vacated the unit and
identifies the date when the family moved out (to the best of the owner’s knowledge); and
The owner certifies that the vacancy is not the fault of the owner and that the unit was vacant
during the period for which payment is claimed; and
The owner certifies that it has taken every reasonable action to minimize the likelihood and length
of vacancy; and
The owner provides any additional information required and requested by ACOH to verify that the
owner is entitled to the vacancy payment.
ACOH Policy
ACOH does not provide for vacancy allowances except as noted above for the calendar month in
which a move-out occurs. Language in the HAP related to vacancy allowances shall not be a part
of the contract between ACOH and the owner.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 34)
20.30 TENANT RENT TO OWNER [24 CFR 983.353]
The tenant rent is the portion of the rent to owner paid by the family. The amount of tenant rent is determined
by ACOH in accordance with HUD requirements. Any changes in the amount of tenant rent will be effective on
the date stated in ACOH notice to the family and owner.
The family is responsible for paying the tenant rent (total tenant payment minus the utility allowance). The
amount of the tenant rent determined by ACOH is the maximum amount the owner may charge the family
for rental of a contract unit. The tenant rent covers all housing services, maintenance, equipment, and
utilities to be provided by the owner. The owner may not demand or accept any rent payment from the
tenant in excess of the tenant rent as determined by ACOH. The owner must immediately return any
excess payment to the tenant.
Tenant and ACOH Responsibilities
The family is not responsible for the portion of rent to owner that is covered by the housing assistance
payment and the owner m ay not terminate the tenancy of an assisted family for nonpayment by ACOH.
Likewise, ACOH is responsible only for making the housing assistance payment to the owner in
accordance with the HAP contract. ACOH is not responsible for paying tenant rent, or any other claim by
the owner, including damage to the unit. ACOH may not use housing assistance payments or other
program funds (including administrative fee reserves) to pay any part of the tenant rent or other claim by
the owner.
Utility Reimbursements
If the amount of the utility allowance exceeds the total tenant payment, ACOH must pay the amount of
such excess to the tenant as a reimbursement for tenant-paid utilities, and the tenant rent to the owner
must be zero.
ACOH may pay the utility reimbursement directly to the family or to the utility supplier on behalf of the
family. If ACOH chooses to pay the utility supplier directly, ACOH must notify the family of the amount paid
to the utility supplier.
ACOH Policy
ACOH will make utility reimbursements to the family.
20.31 OTHER FEES AND CHARGES [24 CFR 983.354] Meals and Supportive Services
With the exception of PBV assistance in assisted living developments, the owner may not require the
tenant to pay charges for meals or supportive services. Non-payment of such charges is not grounds for
termination of tenancy.
In assisted living developments receiving PBV assistance, the owner may charge for meals or supportive
services. These charges may not be included in the rent to owner, nor may the value of meals and
supportive services be included in the calculation of the reasonable rent. However, non-payment of such
charges is grounds for termination of the lease by the owner in an assisted living development.
Other Charges by Owner
The owner may not charge extra amounts for items customarily included in rent in the locality or provided
at no additional cost to unsubsidized tenants in the premises.
_____
Item No. 12.4. ZMA-2013-0006. Este Park - Proffer Amendment (deferred at applicant’s request
to October 2, 2013).
Discussion: Mr. Davis said that the Clerk has advised him that the applicant has requested
indefinite deferral, and he suggested that the item be moved to the approval part of the Consent Agenda
and modified to permit the deferral.
At the request of the applicant, the Board indefinitely deferred ZMA-2013-0006.
_____
Item No. 12.5. Board-to-Board, September, 2013 Monthly Communications Report from School
Board, School Board Chairman, was received for information.
_______________
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 35)
Agenda Item No. 13. SP-2013-00006. Commonwealth Offices (Sign #24).
PROPOSAL: Construct a professional office building on 1.15 acres under Section 18.2.2.11 of
zoning ordinance. No dwelling units proposed.
ZONING: R-15 Residential – 15 units/acre, Professional Office by special use permit; AIA Airport
Impact Area – Overlay to minimize adverse impacts to both the airport and the surrounding land.
COMPREHENSIVE PLAN: Urban Density Residential – residential (6.01 – 34 units/acre);
supporting uses such as religious institutions, schools, commercial, office and service uses in
Neighborhood 1.
LOCATION: The property is located on Commonwealth Drive (State Route 1315), approximately
.35 mile north of the Hydraulic Road-Commonwealth Drive intersection.
TAX MAP/PARCEL: 061w0030001400.
MAGISTERIAL DISTRICT: Jack Jouett.
(Advertised in the Daily Progress on August 26 and September 2, 2013.)
Mr. David Benish, Chief of Planning, said that this is a proposal to construct a 13,500 square foot,
three-story building, on a property that is zoned R-15 residential – and under that zoning professional
office are permitted by special use permit. He said that the property is 1.415 acres and is located on
Commonwealth Drive approximately ¼ mile south of the Greenbrier Commonwealth Drive entrance. Mr.
Benish said that there have been two approvals for residential uses on this site in 2007, there was
approval for 14 townhouses; and in 2010, there was an approval essentially amending that plan to allow
for a 14-unit apartment. He presented a map showing the location of the proposed SP, Commonwealth
Drive, and the parking area and entrance to that road.
Mr. Benish stated that Places 29 recommends the area for urban density residential, which is 16-
34 units per acre, and also considers that retail, office and commercial uses are appropriate under this
designation as a secondary use. He said that staff opinion is that the scale of the office is compatible with
the surrounding area, and the scale of development will ensure that it remains a secondary use when
considering the context of the greater Commonwealth Drive area – which is almost exclusively high-
density residential. Mr. Benish said that staff also sees a positive factor in that the office use would
provide services for that residential area.
He said that the only significant issues with this proposal include two principles of the
Neighborhood Model that were not met onsite, the relegation of parking and orientation of the building to
Commonwealth Drive. Mr. Benish stated that based on the information provided to the Planning
Commission regarding the complexities with developing the site, the applicant provided information
showing that relegating parking to the rear of the building would create extensive fill and retaining wall
construction. He also provided an aerial view to give the Board the context of the location.
Mr. Benish said that the other issue with the site pertains to stormwater detention onsite, which
was originally proposed to be in an old existing basin in the northwest quadrant of the site and at one time
that was intended for a regional stormwater management facility, but there is no funding or schedule to
upgrade it to a public facility, so the stormwater facilities shown in the concept plan would need to be
located fully onsite. He stated that the other issue related to that is the location of a pipe under
Commonwealth Drive that is in disrepair, and it has been replaced but the calculations are not known – so
further study is needed to ensure that the stormwater detention provided onsite can adequately detain it.
Mr. Benish said that could be done as a matter of course with the site plan review process. He confirmed
that any approvals would be contingent upon a successful plan, and providing the facility can be fit on the
site, and this would be needed with by-right development of the site as well.
Mr. Benish stated that favorable factors include provision of a mix of uses within a high-density
residential area, there are no anticipated detrimental impacts to adjacent properties with the change to a
non-residential use, and there are no more significant impacts to the site than what was previously
approved for the residential developments onsite. He said that unfavorable factors include the presence
of a deteriorating outfall condition that will need to be addressed with the storm water management plan
for the site, and the site layout does not provide for the optimal orientation of the parking and building to
Commonwealth Drive.
Mr. Benish stated that the Planning Commission reviewed the request on July 30 and
recommended approval with the conditions as presented in the staff report, and the applicant has offered
a fourth condition which would augment the landscaping along the frontage of Commonwealth Drive. He
said that the new condition would state that in addition to landscaping required per the ordinance, there
will be ornamental street trees planted every 25 feet across the frontage of the site in addition to street
tree requirements.
Mr. Snow asked Mr. Benish if staff agreed with the Planning Commission’s contention that it was
impossible to turn the building so it has a better face to the road. Mr. Benish responded that it is a small
and difficult site to work with, and there are advantages to their proposed building location in terms of it
functioning, such as the fill and retaining wall that would be required to establish the parking area.
Ms. Mallek asked if the parking requirements would have any adjustments due to the fact that
there is transit at the site, or if it’s still one spot per 200 square feet. Mr. Benish said that the applicant has
met the minimum parking requirements, and there may have been some adjustments but that has not
been calculated.
Ms. Mallek said that it might reduce the parking disturbance, and she was alarmed by all the
slopes – and the only reason it is diffused is the prior approvals. Mr. Benish stated that the net result is
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 36)
that this is not very different from the apartment building that was approved, and if you look at the footprint
of that proposal it is the same organization and area of development as the current one.
Mr. Craddock asked if all the stormwater would be contained onsite. Mr. Benish said there would
need to be further analysis of the outfall but there was probably sufficient area for that to be undertaken,
and ordinance requires that they meet that threshold.
The Chair opened the public hearing.
Mr. Justin Shimp, Engineer for the project, addressed the Board, stating that this proposal is fairly
straightforward and the impacts are about the same as with the prior plans – with a little less disturbance
of the sloped area. He stated that the stormwater items was discussed with staff and have been taken
care of. He also said that they are equal for the by-right plan of the SP so it is really just a matter of the
use. Mr. Shimp said that the landscaping condition is reasonable and consistent with the streetscape in
that neighborhood. He offered to answer questions.
Ms. Claire Johnson addressed the Board and asked for clarification of where the project is
proposed. Mr. Benish explained that the project is planned for a section of Commonwealth Drive just
north of the assisted living facility and the Turtle Creek Apartments on Commonwealth Drive.
Ms. Johnson asked how much traffic this would generate and how it would impact the residents
that live in those apartments. She stated that the area is already quite congested. Mr. Thomas explained
that Commonwealth Drive has been designated for the most part as a parallel road.
Ms. Mallek acknowledged that it does make it difficult for existing residents.
There being no further public comment, the Chair closed the public hearing and the matter was
placed before the Board.
Mr. Rooker said that this proposal is located in his district. He said that he has spent time looking
at the current plan and the prior plan, and explained that every piece of property has certain zoning rights
inherent in it – and if the Board turned it down, the applicant would be able to build a 14-unit apartment
building as a matter of right. He said that in looking at the two plans, he feels this is a better plan for the
area, and people who have lived in the area longer can always say that they would prefer that nothing be
built, and that is always the case. Mr. Rooker stated that the proposed plan will fit in the neighborhood
better than the old plan, and his office is one-quarter mile away from the project. He said that the only
issue the staff had was with the parking, and he wanted to ensure that the plantings done along
Commonwealth make the property tie in better to existing plantings and the look and feel of the
neighborhood. Mr. Rooker stated that he had shared a list of native plants and ornamental trees that
might be used with Mr. Snow, who chose forest pansy and he would like staff to consider it.
Mr. Rooker moved to approve SP-2013-0006 subject to the four conditions recommended by
staff as presented. Mr. Snow seconded the motion. Roll was called and the motion carried by the
following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
(The conditions of approval are set out below:)
1. Development of the use shall be in general accord with sheet C4 of 4 (Concept Plan) of the plan
entitled “Application Plan for Commonwealth Office,” prepared by Shimp Engineering, P.C.,
revision 1, dated 5/6/13, as determined by the Director of Planning and the Zoning Administrator.
To be in general accord with the Conceptual Plan, the development and use shall reflect the
following major elements as shown on the Conceptual Plan:
Total building square footage of thirteen thousand, five hundred (13,500) square feet.
Entrance location.
Minor modifications to the plan which are in general accord with the elements above may be
made to ensure compliance with the Zoning Ordinance.
2. Stormwater management facilities shall be located, designed and built completely on the subject
property (Tax Map/Parcel 061W0-03-00-01400) as approved by the County Engineer.
3. The use shall commence on or before September 11, 2015 or the permit shall expire and be of no
effect.
4. In addition to the landscaping required per Section 32 of Chapter 18 of the County Code, for every
twenty-five (25) feet of street frontage one ornamental tree selected from the County
Recommended Plant List shall be planted along the street frontage of Commonwealth Drive. The
minimum height of the ornamental trees at planting shall be six (6) feet.
_______________
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 37)
Agenda Item No. 14. ZTA-2013-00004. Family Day Homes. Ordinance to amend Secs. 3.1,
Definitions, 5.1.06, Day care centers, family day homes, 10.2.1, By right (RA), 12.2.1 By right
(VR), 13.2.1, By right (R-1), 14.2.1, By right (R-2), 15.2.1, By right (R-4), 16.2.1, By right (R-6),
17.2.1, By right (R-10), 18.2.1, By right (R-15), 19.3.1, By right (PRD), 20.3.1, By right (PUD),
20A.6, Permitted uses (NMD), and 20B.2, Permitted uses (DCD) of, and add Sec. 5.1.56, Family
day homes to, Chapter 18, Zoning, of the Albemarle County Code. This ordinance would amend
Sec. 3.1 to revise the definition of “family day home,” amend Sec. 5.1.06, to reorganize the
section and revise it to apply only to day care centers but not family day homes, add Sec. 5.1.56
to establish regulations and performance standards for family day homes providing care for 6 to
12 children related to traffic generation, parking, entrance and access, State licensure, and fire
official inspections, and establish procedures for the review and approval of family day homes,
and amend the district regulations delineated above (10.2.1 through 20B.2) to allow family day
homes as a by right use subject to the substantive and procedural requirements of Sec. 5.1.56.
(Advertised in the Daily Progress on August 26 and September 2, 2013.)
Ms. Rebecca Ragsdale, Senior Planner said the she would be joined by Glenda Best from DSS.
She explained that Family Day Homes is in-home day care which is essentially babysitting. She said that
there are requirements for family day homes through state code and DSS as to how the use is regulated.
Ms. Ragsdale said that they are not proposing any changes with commercial daycare centers or anything
related to caring for five or fewer children in a residence as state code does not allow additional
restrictions on that use because it is a by-right residential use. She said that what is being proposed is to
create a new process, breaking out family day homes from daycare centers, because the ordinance
currently lumps them in with daycare centers and requires them to get a special use permit.
She said that the family day homes are licensed by the State Department of Social Services, and
they initiated a change last summer requiring family day home providers to contact zoning and have a
form signed. Ms. Ragsdale stated that Zoning was not informed of the process by DSS, and began
hearing from day home providers about the requirement. She said that there are currently about 10
licensed day home providers caring for 6-12 children each, and throughout the process they have all been
notified and solicited for input about the zoning changes. Ms. Ragsdale stated that Community
Development has collaborated with the local DSS on the issue, as well as consulting with the state
licensing division – which led to the zoning text amendment initiated with the Planning Commission in
April. She said that the Planning Commission had their work session in June and a public hearing in
August, recommending approval of the draft ordinance that is before the Board.
Ms. Ragsdale presented a list of things that family day homes must meet in order to comply with
the State Department of Social Services regulations and become licensed, mostly related to the safety
and health aspects of the facilities. She said that what staff is focusing on with the ZTA are a few
additional regulations that would address any land use considerations with this type of use. Ms. Ragsdale
presented a table comparing the existing family day home regulations to the proposed regulations, and the
primary recommendation is to go through a different process for this particular use – as staff does not feel
it is of the size and scale that necessitates a full blown special use permit process. She explained that
going to the zoning clearance process would mean up to two months for that type of permit and a $50 fee.
Ms. Ragsdale said that there are supplemental regulations already in the ordinance that staff is
adding for family day homes to address some of the safety and land use considerations with regard to
parking, the entrance and access to sites, and traffic. She stated that the ordinance already stipulates that
family day home providers have inspections by the fire marshal, comply with the building code and health
department requirements, and be licensed by social services. Ms. Ragsdale said that the ordinance
would also require a notice for abutting property owners to give them 30 days to contact the County, get
information, or make comments on the proposed family day home.
Mr. Rooker said that the permits cannot be denied, so people will get notice but their input won’t
change anything.
Ms. Ragsdale confirmed that was the case and Zoning has had experience with that situation
related to the home occupation requirements, but what is different is that Zoning can’t approve an
application administratively if there is a neighbor objection. She said that staff has suggested the special
exception process whereby it would then be heard by the Planning Commission and come before the
Board for approval or denial based on a finding of whether there is a substantial detriment to abutting
property owners.
Ms. Glenda Best addressed the Board, stating that she is the Senior Childcare Services W orker
with Albemarle Department of Social Services. Ms. Best relayed a story of a woman who was the only
licensed childcare provider at U-Heights and the only provider in the area, and she had already been
shortchanged by the state requirement for card-swiping – and after hearing about the new zoning
requirements she called DSS and said she could no longer afford to operate her business. Ms. Best said
that the woman was a licensed provider for 15 years and charged the maximum reimbursement rate that
DSS pays to help make childcare more affordable to parents, and even did after-school care.
Ms. Best stated that DSS have lost several providers like this woman because they can’t afford to
pay the proposed zoning fees, and most licensed in-home providers that accept DSS subsidy kids charge
the maximum reimbursement rate, which means the parents only have to pay 10% of the co-pay – and the
average cost for an in-home provider to care for an infant and a 3-year-old is $1,075 compared with
$2,100 for a daycare center. Ms. Best said that the County and City DSS, along with Children, Youth and
Family Services and the United Way are members of the Childcare Quality Initiative, and they have been
trying hard to encourage volunteer registered and unregulated providers to become licensed.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 38)
Ms. Best said that some in-home licensed providers have let their licenses expire, have gone
down to volunteer register unregulated, and some have gone underground. She stated that in-home
providers are not doing this to get rich, and they can’t afford to lose these providers – as they are more
affordable and often cover evening and weekend hours that centers do not.
Mr. Rooker asked if the “card-swipe problem” related to a lag in getting paid. Ms. Best responded
that it was, and a lot of the early learning centers have had issues getting paid, along with in-home
providers.
Mr. Craddock asked if providers would have to have the card swipe with the new regulation. Ms.
Best said that they would.
Mr. Rooker stated that the $2,000 fee plus delay in receipt of payment has made it very difficult for
these operations to continue.
At this time, the Chair opened the public hearing.
Mr. Shannon Hofer addressed the Board, stating that his youngest daughter attends Gentle Care
daycare and has been there about four months. Mr. Hofer said that it is the best place for her next to
home, and encouraged the Board to adopt the zoning text amendment to relieve the centers from this
additional burden.
Ms. Kerin Yates addressed the Board, stating that she is President of the League of Women
Voters for the Charlottesville area. She said that the League supports community-based efforts to
improve the quality, affordability, and accessibility of childcare in the Thomas Jefferson Planning District –
and home care providers offer the least expensive form of licensed childcare available in the area. Ms.
Yates stated that the County needs to help them remain licensed and in business, and encouraged the
Board to adopt the proposed amendment.
Mr. Ryan Davidson addressed the Board, stating that he is in favor of the ZTA and noted that he
is a County resident and a City employee. Mr. Davidson said that he has seen firsthand how important
high quality childcare is for the families in this community, and the shortage of facilities that offer part-time
care for low income families. He stated that he and his wife send their 2½ year old son and five-month-old
daughter to Gentle Care, which provides the flexibility that many of the larger daycare facilities cannot
offer. Mr. Davidson said that most of those larger centers only offer daytime hours and are not as flexible
with part-time hours. He stated that the smaller centers also support the local economy by buying
supplies and food locally, rather than ordering it from big companies that might even be out of state.
Ms. Betty Sevachko addressed the Board, stating that she was a single parent and is in favor of
the ZTA and it is important to support families so they can work and provide for their own and not rely
outside assistance.
Ms. Linda Shaw addressed the Board, stating that she is owner of Shaw’s Family Daycare in
Keswick and has been offering childcare in her home for 16½ years. Ms. Shaw said that she enjoys
caring for children and does so around the clock, and asked the Board to pass the amendment so that
she can keep the number of children needed to operate her center.
Ms. DeLois Grady addressed the Board, stating that she has been doing childcare for 34 years
and noting that in-home childcare offers many things that big centers don’t, especially flexible morning and
evening hours. Ms. Grady said that she would continue her center regardless of how many kids she can
keep, but 12 is the ideal size for her business.
There being no further comments, the public hearing was closed, and the matter placed before
the Board.
Mr. Rooker moved to adopt Ordinance No. 13-18(5) to approve ZTA-2013-00004. Ms. Mallek
seconded the motion. Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
(The adopted ordinance is set out below:)
ORDINANCE NO. 13-18(5)
AN ORDINANCE TO AMEND CHAPTER 18, ZONING, ARTICLE I, GENERAL PROVISIONS,
ARTICLE II, BASIC REGULATIONS, AND ARTICLE III, DISTRICT REGULATIONS,
OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA
BE IT ORDAINED By the Board of Supervisors of the County of Albemarle, Virginia, that Chapter 18, Zoning,
Article I, General Provisions, Article II, Basic Regulations, and Article III, District Regulations, are hereby
amended and reordained as follows:
By Amending:
Sec. 3.1 Definitions
Sec. 10.2.1 By right
Sec. 12.2.1 By right
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 39)
Sec. 13.2.1 By right
Sec. 14.2.1 By right
Sec. 15.2.1 By right
Sec. 16.2.1 By right
Sec. 17.2.1 By right
Sec. 18.2.1 By right
Sec. 19.3.1 By right
Sec. 20.3.1 By right
Sec. 20A.6 By right
Sec. 20B.2 By right
By Amending and Renaming:
Sec. 5.1.06 Day care centers
By Adding:
Sec. 5.1.56 Family day homes
Chapter 18. Zoning
Article I. General Provisions
Sec. 3.1 Definitions
. . .
Family day home: A child day program offered in the dwelling unit of the provider or the dwelling unit that is the
home of any of the children in care for one (1) through twelve (12) children under the age of thirteen (13),
exclusive of the provider’s own children and any children who reside in the home, when at least one child
receives care for compensation. For the purposes of this definition, a child day program is a regularly
operating service arrangement for children where, during the absence of a parent or guardian, a person has
agreed to assume responsibility for the supervision, protection, and well-being of a child under the age of
thirteen (13) for less than a twenty-four (24) hour period. (Added 10-3-01)
. . .
(§ 20-3.1, 12-10-80, 7-1-81, 12-16-81, 2-10-82, 6-2-82, 1-1-83, 7-6-83, 11-7-84, 7-17-85, 3-5-86, 1-1-87, 6-10-
87, 12-2-87, 7-20-88, 12-7-88, 11-1-89, 6-10-92, 7-8-92, 9-15-93, 8-10-94, 10-11-95, 11-15-95, 10-9-96, 12-
10-97; § 18-3.1, Ord. 98-A(1), 8-5-98; Ord. 01-18(6), 10-3-01; Ord. 01-18(9), 10-17-01; Ord. 02-18(2), 2-6-02;
Ord. 02-18(5), 7-3-02; Ord. 02-18(7), 10-9-02; Ord. 03-18(1), 2-5-03; Ord. 03-18(2), 3-19-03; Ord. 04-18(2),
10-13-04; 05-18(2), 2-2-05; Ord. 05-18(7), 6-8-05; Ord. 05-18(8), 7-13-05; Ord. 06-18(2), 12-13-06; Ord. 07-
18(1), 7-11-07; Ord. 07-18(2), 10-3-07; Ord. 08-18(3), 6-11-08; Ord. 08-18(4), 6-11-08; Ord. 08-18(6), 11-12-
08; Ord. 08-18(7), 11-12-08; Ord. 09-18(3), 7-1-09; Ord. 09-18(5), 7-1-09; 09-18(8), 8-5-09; Ord. 09-18(9), 10-
14-09; Ord. 09-18(10), 12-2-09; Ord. 09-18(11), 12-10-09; Ord. 10-18(3), 5-5-10; Ord. 10-18(4), 5-5-10; Ord.
10-18(5), 5-12-10; Ord. 11-18(1), 1-12-11; Ord. 11-18(5), 6-1-11; Ord. 11-18(6), 6-1-11; Ord. 12-18(3), 6-6-12;
Ord. 12-18(4), 7-11-12; Ord. 12-18(6), 10-3-12, effective 1-1-13; Ord. 12-18(7), 12-5-12, effective 4-1-13; Ord.
13-18(1), 4-3-13; Ord. 13-18(2), 4-3-13; Ord. 13-18(3), 5-8-13)
State law reference – Va. Code § 15.2-2286(A)(4).
Article II. Basic Regulations
Sec. 5.1.06 Day care centers
Each day care center shall be subject to the following:
a. State licensure. Each day care center shall acquire and maintain the required licensure from the
Virginia Department of Social Services. The owner or operator of the day care center shall provide a
copy of the license to the zoning administrator. The owner or operator’s failure to provide a copy of
the license to the zoning administrator shall be deemed to be willful noncompliance with the
provisions of this chapter. (Amended 10-3-01)
b. Inspections by fire official. The Albemarle County fire official is authorized to conduct periodic
inspections of the day care center. The owner or operator’s failure to promptly admit the fire official
onto the premises to conduct an inspection in a manner authorized by law shall be deemed to be
willful noncompliance with the provisions of this chapter. (Amended 10-3-01)
c. Relationship to other laws. The provisions of this section are supplementary to all other laws and
nothing herein shall be deemed to preclude application of the requirements of the Virginia Department
of Social Services, Virginia Department of Health, Virginia State Fire Marshal, or any other local, state
or federal agency. (Amended 10-3-01)
(§ 5.1.0.6, 12-10-80; Ord. 01-18(6), 10-3-01)
Sec. 5.1.56 Family day homes
Each family day home shall be subject to the following:
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 40)
a. Care for five or fewer children. Each family day home providing care for five (5) or fewer children
under the age of thirteen (13), exclusive of the provider’s own children and any children who reside in
the home, shall be regulated as a single-family residential use.
b. Care for more than five but not more than twelve children. Each family day home providing care for
more than five (5) but not more than twelve (12) children under the age of thirteen (13), exclusive of
the provider’s own children and any children who reside in the home, shall be subject to the following:
1. Traffic. The additional traffic generated by a family day home, excluding trips associated with
the dwelling unit, shall not exceed twenty-four (24) vehicle round trips per day. For the
purposes of this section, a “vehicle round trip” means one vehicle entering and exiting the
site. The limitation on the number of vehicle round trips per day may be waived or modified
by special exception. In acting on a special exception, the board shall consider whether the
waiver or modification of the number of vehicle round trips per day will change the character
of the neighboring agricultural area or the residential neighborhood, as applicable, and
whether the additional vehicle trips per day will be a substantial detriment to abutting lots.
Notice of the application for a special exception shall be posted as provided in section
33.4(m)(2).
2. Parking. Each family day home shall provide one (1) parking space plus one (1) parking
space for each additional employee. The parking spaces may be located on-site, on the
street where authorized by law, or in a parking lot safe and convenient to the family day
home.
3. Entrance and access. In conjunction with each application for a zoning clearance, the zoning
administrator shall identify, if necessary, the applicable design and improvements required
that are at least the minimum necessary to protect public health and safety by providing safe
ingress and egress to and from the family day home site, safe vehicular and pedestrian
circulation on the site, and the control of dust as deemed appropriate in the context of the
use. The zoning administrator may consult with the county engineer or the Virginia
Department of Transportation regarding the minimum design and improvements for the
entrance and access.
4. State licensure. Each family day home shall acquire and maintain the required licensure from
the Virginia Department of Social Services. The owner or operator of the family day home
shall provide a copy of the license to the zoning administrator. The owner or operator’s failure
to provide a copy of the license to the zoning administrator shall be deemed to be willful
noncompliance with the provisions of this chapter.
5. Inspections by fire official. The Albemarle County fire official is authorized to conduct periodic
inspections of the family day home. The owner or operator’s failure to promptly admit the fire
official onto the premises and into the dwelling unit to conduct an inspection in a manner
authorized by law shall be deemed to be willful noncompliance with the provisions of this
chapter.
6. Waivers or modifications by special exception. Except as provided in subsection (b)(1), no
requirement of this section may be waived or modified.
7. Zoning clearance and notice of request. No family day home shall commence without a
zoning clearance issued under section 31.5, subject to the following:
(a). Notice to abutting lot owners. At least thirty (30) days prior to acting on the zoning
clearance, the zoning administrator shall provide written notice of the application for
a zoning clearance to the owner of each abutting lot under different ownership than
the lot on which the proposed family day home would be located. The notice shall
identify the proposed family day home, its size and capacity, its location, and
whether a special exception under subsection (b)(1) is requested. The notice shall
invite the recipient to submit any comments before the zoning clearance is acted
upon. The notice shall be mailed or hand delivered at least thirty (30) days prior to
the action on the zoning clearance. Mailed notice shall be sent by first class mail.
Notice mailed to the owner of each lot abutting the site shall be mailed to the last
known address of the owner, and mailing the notice to the address shown on the
current real estate tax assessment records of the county shall be deemed to be
compliance with this requirement.
(b). Special exception. If the zoning administrator receives a written objection to the
family day home from the owner of an abutting lot within thirty (30) days after the
notice was mailed or delivered, the zoning clearance shall not be approved until after
the applicant obtains a special exception for the family day home as provided in
sections 33.5 and 33.9. In acting on a special exception, the board shall consider
whether the proposed use will be a substantial detriment to abutting lots.
8. Relationship to other laws. The provisions of this section are supplementary to all other laws
and nothing herein shall be deemed to preclude application of the requirements of the
Virginia Department of Social Services, Virginia Department of Health, Virginia State Fire
Marshal, or any other local, state or federal agency.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 41)
(§ 5.1.0.6, 12-10-80; Ord. 01-18(6), 10-3-01)
Article III. District Regulations
Sec. 10.2.1 By right
The following uses shall be permitted by right in the RA district, subject to the applicable requirements of
this chapter:
. . .
28. Family day homes (reference 5.1.56).
. . .
(§ 20-10.2.1, 12-10-80; 12-16-81; 7-6-83; 11-1-89; 11-8-89; 11-11-92; 5-12-93; Ord. 95-20(5), 11-15-95; Ord.
98-A(1), § 18-10.2.1, 8-5-98; Ord. 02-18(6), 10-9-02; Ord 04-18(2), 10-13-04; Ord. 06-18(2), 12-13-06; Ord.
08-18(7), 11-12-08; Ord. 09-18(11), 12-10-09; Ord. 10-18(3), 5-5-10; Ord. 10-18(4), 5-5-10; Ord. 11-18(1), 1-
12-11; Ord. 12-18(3), 6-6-12)
Sec. 12.2.1 By right
The following uses shall be permitted by right in the VR district, subject to the applicable requirements of this
chapter:
. . .
19. Family day homes (reference 5.1.56).
(§ 20-12.2.1, 12-10-80; 9-2-81; 11-1-89; 11-11-92; Ord. 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04; Ord.
10-18(4), 5-5-10)
Sec. 13.2.1 By right
The following uses shall be permitted by right in the R-1 district, subject to the applicable requirements of this
chapter:
. . .
14. Family day homes (reference 5.1.56).
(§ 20-13.2.1, 12-10-80; 9-2-81; 11-1-89; 5-12-93; Ord. 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04)
Sec. 14.2.1 By right
The following uses shall be permitted by right in the R-2 district, subject to the applicable requirements of this
chapter:
. . .
14. Family day homes (reference 5.1.56).
(§ 20-14.2.1, 12-10-80; 9-2-81; 11-1-89; 5-12-93; Ord. 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04)
Sec. 15.2.1 By right
The following uses shall be permitted by right in the R-4 district, subject to the applicable requirements of this
chapter:
. . .
16. Family day homes (reference 5.1.56).
(§ 20-15.2.1, 12-10-80; 9-2-81; 11-1-89; 5-12-93; Ord. 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04)
Sec. 16.2.1 By right
The following uses shall be permitted by right in the R-6 district, subject to the applicable requirements of this
chapter:
. . .
17. Family day homes (reference 5.1.56).
(§ 20-16.2.1, 12-10-80; 9-2-81; 11-1-89; 5-12-93; Ord. 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04)
Sec. 17.2.1 By right
The following uses shall be permitted by right in the R-10 district, subject to the applicable requirements of this
chapter:
. . .
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 42)
17. Family day homes (reference 5.1.56).
(§ 20-17.2.1, 12-10-80; 9-2-81; 3-5-86; Ord. 03-18(1), 2-5-03; Ord. 04-18(2), 10-13-04)
Sec. 18.2.1 By right
The following uses shall be permitted by right in the R-15 district, subject to the applicable requirements of this
chapter:
. . .
17. Family day homes (reference 5.1.56).
(§ 18.2.1, 12-10-80; 9-2-81; 11-1-89; Ord. 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04)
Sec. 19.3.1 By right
The following uses shall be permitted by right in the PRD district, subject to the applicable requirements of this
chapter:
. . .
13. Family day homes (reference 5.1.56).
(§ 20-19.3.1, 12-10-80; 9-2-81; 11-1-89; 5-12-93; Ord. 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04)
Sec. 20.3.1 By right
The following uses shall be permitted by right in the PUD district, subject to the applicable requirements of this
chapter:
. . .
13. Family day homes (reference 5.1.56).
(§ 20-20.3.1, 12-10-80; 9-2-81; 11-1-89; 5-12-93; Ord 02-18(6), 10-9-02; Ord. 04-18(2), 10-13-04; Ord.
13-18(2), 4-3-13)
Sec. 20A.6 Permitted uses
The following uses shall be permitted in an NMD, subject to the regulations in this section and section 8, the
approved application plan and code of development, and the accepted proffers:
a. By right uses. The following uses are permitted by right if the use is expressly identified as a by right
use in the code of development or if the use is permitted in a determination by the zoning
administrator pursuant to subsection 8.5.5.2(c)(1):
. . .
11. Family day homes (reference 5.1.56).
. . .
(Ord. 03-18(2), 3-19-03; Ord 04-18(2), 10-13-04; Ord. 09-18(9), 10-14-09; Ord. 10-18(4), 5-5-10; Ord. 13-
18(2), 4-3-13)
Sec. 20B.2 Permitted uses
The following uses shall be permitted in the DCD, subject to the regulations in this section:
. . .
D. By right uses; residential. The following residential uses are permitted by right, provided that the first
floor of the building in which the residential use exists is designed for and occupied only by a use
permitted by subsections 20B.2(A), (B), (C) or (E):
. . .
8. Family day homes (reference 5.1.56).
. . .
(Ord. 08-18(3), 6-11-08; Ord. 10-18(4), 5-5-10; Ord. 13-18(2), 4-3-13)
_______________
NonAgenda. The Board recessed at 7:37 p.m., and reconvened at 7:48 p.m.
_______________
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 43)
Agenda Item No. 15. ZMA-2012-00004. Avon Park II (Signs #89&91).
PROPOSAL: Rezone 5.262 acres from R-6 zoning district for which allows residential uses at a
density of 6 units per acre to PRD zoning district which allows residential uses with limited
commercial uses at a density of 3 - 34 units/acre. 32 maximum units proposed for a density of 6
units/acre.
ENTRANCE CORRIDOR: Yes.
PROFFERS: Yes.
COMPREHENSIVE PLAN: Neighborhood Density Residential– residential (3-6 units/acre);
supporting uses such as religious institutions, schools, and other small-scale non-residential uses.
LOCATION: 1960 Avon Street Extended. Approximately 1000 feet north of the intersection of
Avon Street Extended and Route 20, south of existing Avon Court.
TAX MAP/PARCEL: 09000000003100.
MAGISTERIAL DISTRICT: Scottsville. (deferred from August 14, 2013).
(Advertised in the Daily Progress on August 26 and September 2, 2013.)
Ms. Claudette Grant, Senior Planner, addressed the Board, stating that the property for the ZMA
is located at 1960 Avon Street Extended and the purpose of the request is to rezone 5.262 acres from R-6
residential zoning district to planned residential development zoning district (PRD). Ms. Grant said Avon
Park II was originally rezoned and approved in 2007 for 31 residential units, inclusive of seven single-
family detached units and 24 condominium townhouse units. She stated that the applicant now proposes
32 residential units, with 20 single-family detached units and six condominium townhouses that will also
have six apartments within them. Ms. Grant said the applicant has had difficulty completing the currently
approved project and anticipates a better outcome with the proposed changes. Ms. Grant presented
slides showing the proposed application plan, stating that the single-family homes will be along the main
road and noting open space at the end of the main road which includes a play area. She highlighted a
slide showing the approved application plan and noted the location of the proposed townhouses.
Ms. Grant said the Planning Commission staff report explains that the proposed changes are not
very different than what was approved in 2007 and, on March 19, the Planning Commission held a public
hearing for the rezoning request and recommended approval with proffers to be amended. She explained
that the recommended amendments eliminate the fifth proffer regarding certificate of occupancy and
include the addition of a proffer restricting uses to those that are residential and what staff feels are
necessary in a PRD district. Ms. Grant said that, in addition to the technical fixes to the proffers, staff
feels the applicant should work with the adjacent neighbors regarding the fence type. She stated that the
proffers have not changed significantly from the approved proffers, and the previous affordable housing
proffer had included for sale, for rent, and cash in lieu options. Ms. Grant stated that the proposed
affordable housing proffer provides a specific unit type with the apartments within the townhouse unit,
therefore eliminating the need for various options. She said the proposed affordable housing language
was reviewed and acceptable to the housing director, and proposed proffer three related to cash proffers
is revised for the new updated cash proffer amounts; proposed proffer four related to erosion and
sediment control is updated to provide additional erosion and sediment control measures; proffer five is
new and was added as a result of the Planning Commission meeting.
Ms. Grant stated that one of the major issues with the proposal has to do with the incomplete
Arden Drive, which is proposed to be the only access for the development. She said Mark Graham has
been working on this issue and could answer questions about it. Ms. Grant stated that the application plan
has been revised to change setbacks for Lots 1-4, and the rear setbacks would be increased to 30 feet
from 20 feet, and for Lots 9-10, the applicant is showing an increase in the side setback to 20 feet from 15
feet. She reiterated that the proffers have been revised per staff and the Planning Commission’s
recommendations.
Ms. Mallek asked for clarification as to the statement “incidental in PRD,” and “plus what staff
feels is necessary.” Ms. Grant responded that there are items which Zoning usually keeps in proffers,
such as certain types of daycare centers or dry cleaners, etc.
Mr. Rooker said utility facilities would be a typical example.
Ms. Grant stated that staff and the Planning Commission recommend approval of ZMA 2012-0004
with the revised proffers and plan.
Ms. Mallek asked if it was official that Lots 9-10, 11-12, and 13-14 are moved to some other
location on the property. Ms. Grant confirmed that it had not been brought forward officially yet.
Mr. Rooker asked if the setback items had been addressed since the Planning Commission
meeting, as the applicant had indicated a willingness to deal with those. Mr. Davis said the plan stands as
a submittal requirement and is approved as part of the property’s rezoning, adding that the plan must
reflect those elements in order for it to be part of the approval.
Mr. Snow stated that he would like to see a plat that shows which side of the property line has
been increased and which side has been decreased, and how it affects the residents that are already
there.
Ms. Grant illustrated the changes to setbacks for Lots 1-4 on a map provided, noting the location
of the existing Avon Park I, and said that the setbacks were increased to 30 feet. She said the plan before
the Board is what was discussed at the Planning Commission meeting and what the applicant has revised
at this time. Ms. Grant stated that the other change to the side setback happened with one particular
townhouse unit, and that was increased to 20 feet as discussed at the Commission meeting.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 44)
Mr. Rooker said there had been discussion of moving that three-story unit to the other side of the
road so it wouldn’t be towering over the properties behind it in the existing Avon Park, and asked if that
had been done yet. Ms. Grant stated that it had not been done officially.
Mr. Snow said there had also been discussion on a full privacy fence, and then going to a three-
rail fence, and asked Ms. Grant to show him where the fence would be located.
Ms. Grant explained that it’s been shown with the approved plan, and staff has had discussions
with the adjacent property owners to the south noting that the proposed fence would be along the entire
south side of the property. She said the proposed fence changes in two areas, with one area being a
“country fence” with three boards located to the rear of the property, and the area located closest to Avon
Street would be more of a typical board-sided fence. Ms. Grant noted that the fence was changed based
on the requests of adjacent property owners.
Mr. Rooker asked about Stratford being opened up to Avon Street Extended at least for a
potential emergency exit, and asked if that was still being discussed. Ms. Grant said, although it was not
in the current plan, it had been discussed, however, staff had not been involved in those conversations.
Ms. Mallek asked if there was an existing road that goes through the open space and comes out
on Avon Street. Ms. Grant confirmed that was the case.
Mr. Craddock said there seemed to be a lot of tentative items in the plan, and asked Mr. Graham
to speak to the bond issues.
Mr. Graham explained that, with Avon Park Section I, the developer did not finish the roads and
went into bankruptcy, and the project still has a bond on it which was requested by the County a little over
a year ago. He said the bonding company is Assurity, and has the option under the agreement to
complete the improvements themselves or give the County the money to complete the improvements. Mr.
Graham said the bonding company has completed their analysis and told him verbally that it’s their
intention to complete the projects themselves, and he has requested that in writing. He stated that
Assurity has said they would do that, but they have not done it to date. Mr. Graham said they are planning
to start the work very soon and hope to be finished by the end of the calendar year.
Ms. Mallek said that would address the surface of the road, but asked about the wall.
Mr. Graham responded that the wall was not an improvement on the road itself, as it was on
private property, was improperly constructed and encroaches into the right of way. He said staff has
made it clear to the bonding company that the wall needs to be removed from the right of way. He said
another option would be to come to an agreement between the community association, the insurance
company, the County, and VDOT – who would ultimately take over maintenance of the road so as to allow
the encroachment to continue. Ms. Mallek asked about the drainage issues onsite.
Mr. Graham said that the drainage issues are part of the solution for completing the
improvements, and have been a large part of the focus of the discussions – both the water running across
Avon and water going over the retaining wall. He stated that both the construction manager and the
contractor have identified solutions to those problems, and it’s just a matter of getting them done now.
Ms. Mallek asked if the County had any leverage with completion date. Mr. Graham said the
County has the stipulations under the bond agreement, but he wasn’t certain how much leverage they
have and Mr. Davis would need to clarify. Mr. Graham said that, after a lot of initial delays by the
insurance company as far as addressing the bond, they appear to be showing diligence in terms of
completion of the improvements – and the schedule they’ve provided the County indicates they plan to
stay on task.
Mr. Craddock asked if there would be a time lag before they can actually start doing work . Mr.
Graham said they can start doing the work now but they ultimately need the County to sign off on the
work; however, the County has said they need VDOT to sign off on the work also.
Mr. Snow said he has read the Planning Commission minutes and it doesn’t seem that there’s any
way to get a road directly to Avon Street due to the narrowness and steepness of the lot.
Ms. Grant said her understanding is that it’s pretty steep to get to Avon Street from where the lot
is located.
Mr. Rooker stated that several neighbors had discussed having a second exit there for emergency
vehicle purposes, and those exits don’t have to meet the same standards as a regular road would – so the
question is whether it would even be adequate for that purpose as the roads are fairly steep for fire trucks
coming into that neighborhood, whereas Stratford is almost a straight shot.
Ms. Grant said the Fire and Rescue Department reviewed the application and didn’t say anything
about needing to put an entrance there, and seemed to think that the existing access would work for them.
Mr. Benish stated that the grade could have some impact depending on the type of vehicle, as a
large, heavy pumper might have difficulty negotiating it whereas an ambulance or small squad vehicle may
not. He said that is something staff could pursue if the Board so desires.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 45)
Mr. Thomas asked if the roads were sufficient to handle a 19-foot engine. Mr. Benish said
Stratford is in excess of 20 feet, which is the standard, and Hathaway running north and south is wide
enough but also shows parallel parking, so fire and rescue would need to evaluate that. He stated that
thus far, they have been OK with the zoning proposal but noted that some of the details would need to be
rectified during the site planning process.
Mr. Rooker asked if the turnaround at the end of Stratford was adequate to allow the fire truck to
turn around and come back out. Ms. Grant said they didn’t comment on that but, when it comes in for site
plan review, the details will be ironed out further for fire and rescue.
Mr. Benish stated that a “hammerhead” concept has been acceptable to them at other locations,
but planning staff does not have a specific comment related to turnarounds.
The Chair opened the public hearing.
Mr. Vito Cetta addressed the Board, stating that he had met with fire and rescue officials and they
were perfectly happy with the plan. He thanked Ms. Grant for her work and said she had done a
wonderful job with the project. Mr. Cetta said the proffers should all be in good shape, and he didn’t plan
to negotiate them further.
Mr. Cetta said part of the issue with this application is dealing with the Avon Park neighbors,
stating that the park is property he bought many years ago, designed it, and it’s now all built out. He
mentioned that it was one of the first developments with affordable housing. Mr. Cetta stated that he has
met neighbors to the south of the property, answered their questions on several occasions, and met with
the neighbor to the north of the site, who was also happy with changes. He said that he contacted the
Avon Park residents and offered to answer their questions; however, it did take the owners there a long
time to get back to him.
Mr. Cetta stated that he just met with them the previous Monday and agreed to make three
relatively simple changes – increasing the setbacks, adding more landscaping, and installing street lights.
He said the Board could approve the application with those three changes made to the plan, but he
realizes they can’t do it that way any longer. Mr. Cetta stated that his understanding is that now he has to
change his plan and come back to the Board in three months. He said one of the main goals of the
Neighborhood Model and master plan is to preserve farms, woods and scenic roads, and driving south
from Avon Street to Scottsville, it looks the same as it did 40 years ago – and the development areas are
very limited.
Mr. Rooker asked if some of the changes just discussed can be done by the developer without
violating the plan, even though those changes are not in the proffers or the plan. Mr. Davis said the
landscaping shouldn’t be a problem, but moving houses from one location to another to increase setback
would probably have to have a compliance finding with the application plan.
Mr. Benish stated that staff hasn’t looked at the potential implications of the re-location and, while
there’s a reference to a certain lot, staff doesn’t know if the revised setbacks and grading could fit there.
He also said that there’s a note on the application plan which indicates “no street lights will be provided”
so, if the applicant wants to provide those, it’s inconsistent with a specific note on the plan – and some of
the landscaping areas are probably OK because it doesn’t mention what additional landscaping can be
provided. Mr. Benish emphasized that staff hasn’t had a chance to vet the additional requests, and this is
just a quick assessment.
Mr. Cetta said that, if the buildings were moved, he could see why he needed to come back,
although he hated to wait another three months.
Mr. Davis stated that staff is requesting that what’s being proposed is shown on the application
plan before it’s approved.
Ms. Nancy Schlichting addressed the Board, stating that she represents the Avon Park
homeowner’s association and they have had several meetings with Mr. Cetta. Ms. Schlichting said they
do not think this should be approved at this point, because the homeowners have been dealing with two
failed developers, an unfinished comm unity, and now a new development. She stated that they feel
approval is a bit premature, although they’re encouraged by the activity on the part of the insurance
company – however, the County should be cautious about the scope of work because the retaining wall
encroaches into the right of way. Ms. Schlichting said they believe the issues can be addressed and that
Mr. Cetta can submit an amended plan, however, his engineer can’t say for certain whether the
townhouses can be moved because he is still working on the logistics. She stated that the provisions
would improve this plan as it would prevent congestion coming up the one entrance to Avon Park II, and
the lighting and landscaping would also be improvements. She said the plan significantly affects the
setbacks and the homes located along the common wall, and the character of the townhomes is different
from those in Avon I.
Mr. Snow asked if the increased setbacks to 20 feet would change anything compared to the old
plan. Ms. Schlichting responded that the back setbacks were changed to 20 feet after homeowners met
with Mr. Cetta, but what they’re talking about now are the side setbacks on the common row with Avon I –
which could be addressed by moving the townhomes catty-cornered down to be symmetrical to the
existing townhomes, which would allow the side setbacks to be increased. She added that the additional
benefit of moving them would be eliminating the traffic and congestion at the entrance to Stratford.
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Ms. Linda O’Connor addressed the Board, stating that she is a resident of Avon Park and a
member of their board. Ms. O’Connor referenced the current proposed plan and the 2008 approved plan,
along with a border adjustment from February 2008. She said that, with the proposed plan, the multi-
family homes are directly behind her house and would sit on a rise that would place them higher than all
the Avon homes below Hathaway. Ms. O’Connor stated that she has only 21 feet with her rear setback,
and the combination of the elevation with the height of the homes would have people looking right into her
house. She said they also have concerns that a fire occurring on Lots 9-14 could cause downward spread
of fire into Avon I because of the elevation. Ms. O’Connor said Mr. Cetta’s agreement to move Lots 9-14
to Lot 4 addresses several community concerns, including the elevation issue, the encroachment on their
privacy, the potential traffic congestion, and the setback issue. She said the homeowners are requesting
that the replacement home – the one that would be placed on the multi-family home spot – be somewhat
underground so as to eliminate elevation concerns.
Mr. Dennis O’Connor addressed the Board, stating that he is a resident of Avon Park and
indicating that Mr. Cetta has also agreed to increase the rear setbacks and, as shown on the plan
submitted, the rear setbacks for Lots 1-4 are now 30 feet. Mr. O’Connor said that Mr. Cetta has tentatively
agreed to increase the rear setbacks to 30 feet also for Lots 21-24 as well as for the home that will replace
the multi-family homes. He stated that the submitted plan also shows that no retaining wall will be built
next to Avon Lot 44 and, if grading is determined to be needed in the future, they request that an
exceptionally strong retaining wall be built and that it have a multi-year guarantee since it took years for
the current Avon I retaining wall problems to develop. Mr. O’Connor said Mr. Cetta has also agreed to put
in street lighting in Avon II and landscaping along the Avon I/Avon II border, and has tentatively agreed to
move a fire plug and extend Stratford hammerheads to allow for turnaround of emergency vehicles.
Ms. Sue Mantz addressed the Board, stating that she is a long-time resident of Avon Park and a
licensed realtor in Charlottesville. She said the homeowners are not opposed to having Mr. Cetta replace
the townhomes from the 2008 plan with more lucrative homes, but not at the expense of Avon Park I. Ms.
Mantz said Avon Park II is replacing townhomes with larger homes but is then decreasing the side
setbacks below Hathaway, despite the fact that townhomes are clearly selling in the Charlottesville area.
She stated that the second quarter market data shows that townhouses were up almost 25% in the
Charlottesville area and, in Avon Park over the last year, they had eight townhomes that were listed –
seven of them sold at 93% or higher. Ms. Mantz said that, from 2012 to 2013, townhome sales in the area
are on the rise. She stated that the side setbacks in the new proposed plan for Avon II are significantly
reduced over the old plans, encroaching on Avon I residents’ privacy and impacting property values. Ms.
Mantz said a boundary adjustments plat dated February 2008 specified side setbacks were at 15 feet for
Avon Park II and the approved July 2008 site plan had setbacks reduced to 10 feet, or 67%. She stated
that Mr. Cetta has proposed to increase the side setbacks to 7.5 feet, but that’s still less than 10 in the old
plan and the side setbacks for Avon I. Ms. Mantz said these small setbacks are clearly not similar to any
neighboring developments such as Mill Creek South or Lake Reynovia, both of which have side setbacks
of about 20 feet. She stated that the setbacks in the new plan don’t uphold the promise to homeowners
that there would only be one home behind their single-family homes, and the 2008 plan does uphold that
promise. Ms. Mantz said the Avon II homes planned for Lots 22 and 31 are about 1,000 square feet larger
than their neighbors, and homeowners are requesting that the side setbacks be 10 feet for Lots 21-24,
and for the home replacing the multi-family home as well.
Mr. Brian Lee addressed the Board, stating that he is the owner of Lot 44 in Avon Park and is a
degreed civil engineer. He said Lot 44 directly abuts Hathaway Street, and he also owns the 20-foot
grading easement granted for construction of Avon Park II. Mr. Lee said there is intent for grading to be
done in that easement and, while Mr. Cetta has eliminated the retaining wall, he still intends to slope in
that grading easement in order to get down to proposed extension to Hathaway. Mr. Lee said he has
concerns about that as a homeowner, as there is already erosion shown on that same slope and, if it is
continued, there will be further erosion on that hill which could potentially undermine the foundation of his
home and some of the neighbors on that side of Avon Park I. He stated that the February 2008 border
adjustment plan shows a sliver of land going to Avon Park II, and that starts at approximately nine feet
behind the water tower, passes through his property and down into the common area behind the single-
family homes on the other side, and decreases to about three feet. Mr. Lee said the border between Avon
I and II is not clearly delineated on that plan, and the borders are shown using only bearings and some
physical markers, not specific borders determined with GPS clarity. He stated that the surveyor who
performed the adjustment said there was no loss of land to Avon Park I, and the affected hom eowners
have hired a surveyor to identify the border per the recorded plats. Mr. Lee said when Mr. Cetta agreed to
increase the rear setbacks for Lots 1-4 to 30 feet, the square footage on the plan has remained the same,
and residents are asking for clarification as to whether his intention is to put a home of the same square
footage there.
Mr. Justin Conger addressed the Board, stating that he is the longest-serving board member at
Avon Park, a 59-lot community which has seen two home-builders go bankrupt and has had to foot a lot of
the bills. Mr. Conger said their roads were never completed, and the small community pays for snow
plowing as well as various other maintenance projects. He stated that the HOA has been actively
pursuing a performance bond, and they are concerned that more homes will be added to this development
when there are still huge issues which need to be remedied. Mr. Conger presented photos he had taken
during a heavy thunderstorm over the summer, and noted that the retaining wall is clearly not doing what
it’s meant to do – with no evidence presented as to whether it was properly inspected. He said the
sinkholes and erosion have also caused problems, and the right of way authority has also not been
clarified. Mr. Conger stated that Avon Park I has been strapped with almost $30,000 in expenses due to
defunct plans started by developers and bankrupt homeowners, which averages to about $500 per
homeowner. He said they shouldn’t bear the brunt of the expenses, nor should the County, and they
should be incurred by the bond company. He said Avon I is not complete, and they should not move
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
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forward with another rezoning request until Avon I is complete. Mr. Conger stated that homeowners are
requesting that any rezoning amendment approved would be contingent upon completion of Avon Park I
and the retention wall.
Ms. Corinne Lauer addressed the Board, stating that stormwater management on Avon I and II
land is insufficient at this point, leading to more erosion despite the thick vegetation on Avon II and the silt
fence near the Avon I and II border. Ms. Lauer said dirt and soil are being pushed through, and the silt
fence that was constructed to prevent the spillage and runoff near that border is mostly destroyed. She
stated that flooding and erosion runoff from Avon II are a problem in Avon I, and backyards are flooded
despite the landscaping and mulching that has been put in place. Ms. Lauer said Mr. Cetta has described
the stormwater and erosion management systems for Avon II, and has tentatively agreed to put
landscaping barriers near the Avon I border which will help with the erosion. She stated that, given the
stormwater problems experienced over the years, residents there feel it would be prudent for the County
to perform a formal hydrology study to ensure that the stormwater systems and erosion control plans are
sufficient.
Ms. Tara de Cardenas addressed the Board, stating that she would address parking concerns
already existing in Avon Park I and concerns for Avon II. Ms. De Cardenas presented a photo of Arden
Drive taken on a Saturday morning, noting the limited parking available on the street and stating that both
Arden and Hathaway are single-sided parking. She said that, given the parking issues with Avon I,
residents would like to request that a no parking waiver be granted to Avon II in the future – and they
would like to have staff ensure that parking in Avon II adhere to the County Code, specified in Chapter 18,
Section 4.12.6 regarding the number of parking spaces and Chapter 18, Section 4.12.16 on the minimum
parking space requirements.
Ms. Maryam Tatavosian addressed the Board, stating that she is representing the Avon Park
Homeowners Association and wanted to address traffic and safety issues. She stated that there is
currently no interconnectivity with Avon Street Extended, contrary to Neighborhood Model principles and,
at the Planning Commission hearing in March, Mr. Cetta said he was amenable to creating direct access
to Avon Extended if the County says it’s possible. Ms. Tatavosian said that, without interconnectivity,
Avon II will add a considerable load to Arden Drive with the only access under the current proposal and
the 2008 plan is through Arden Drive. She stated that using ITE trip generation rates, Arden Drive will
have over 740 daily trips – and it’s only .1 mile in length, with Hathaway being .3 miles, before the
entrance to Avon II. Ms. Tatavosian stated that these are short roads for the traffic load, and residents are
unclear whether the County has pursued alternative approaches from Avon II to Avon Street Extended.
She said safety for children in Avon I is an issue today even without Avon II added traffic on Arden, and
they’ve placed two signs on that road to try to protect kids from speeding cars. Ms. Tatavosian said that,
despite those efforts, speeding is an issue today in Avon I and would be even more of a concern with
Avon II traffic added. She stated that Avon construction vehicles and emergency vehicles would need to
go up Arden, creating additional traffic and safety issues. Ms. Tatavosian said that curvature of Arden
Drive does not provide oncoming traffic a clear view of children who are crossing the street and vice
versa, and Avon I has a growing number of families with young children. She stated that the lack of
interconnectivity here is contrary to the Neighborhood Model and puts the safety of children at risk with
Avon II added traffic onto Arden Drive, and does not allow easy flow for emergency vehicles. Ms.
Tatavosian said that, since Mr. Cetta is amenable to creating direct access to Avon II from Avon Street
Extended, homeowners request that the County study other alternatives to see if it’s possible.
Ms. Nancy Schlichting addressed the Board, stating that there was a petition signed by 110
homeowners as well as local residents regarding the rezoning, and provided the Board with the original
signed petition. She also said that the homeowners are passionate about their neighborhood, but they
have also been realistic and conscientious, and respectful as well as transparent. Ms. Schlichting stated
that the homeowners association is very fearful given the past history of trouble with builders and
bankruptcy, and it’s important for the scope of work to be nailed down – without the homeowners being
stuck with the bill.
Mr. Cetta addressed the Board, stating that it’s unfortunate that the builders went bankrupt, but
that was due to the economy. He also said these communities are tight, and homeowners need to insist
that people park in their garages, pointing out that there will always be parking issues with the
Neighborhood Model. Mr. Cetta stated that about half the homes sold are townhouses, adding that he
was prepared to defer.
Ms. Mallek asked if Mr. Cetta was willing to work on following through with the items previously
discussed. Mr. Cetta said he was, and that he would work with the neighbors as well.
Mr. Benish stated that, if the Board has specific expectations for the applicant, it would be helpful
to articulate those, but otherwise the applicant is prepared to move forward with the items already
discussed and staff will come back with a revised plan.
Mr. Thomas suggested to Mr. Cetta that he go to the planners and make sure that they know
everything discussed with the homeowners, so he won’t have to go through another deferral.
Mr. Cetta said the homeowners didn’t get involved early enough in the process and, if they had
been, this probably would have been resolved earlier.
Mr. Thomas stated that Mr. Cetta would need to transfer the homeowners’ thoughts back to the
Planning Commission.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
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Mr. Cetta said neighborhood representatives should also meet with staff so they’re satisfied with
what’s being decided.
The Chair then closed the public hearing.
Mr. Rooker said there are obviously stormwater drainage problems onsite, and there was mention
of doing a hydrology study. He asked how Mr. Cetta could ensure that the drainage problem doesn’t get
worse during and after construction.
Mr. Graham stated that the hydrology study would be required anyway under the Water Protection
Ordinance which would have a minimum standard, however, the homeowners are probably asking for
something above that minimum standard. He said staff could work with the homeowners and with the
developer to craft some language that would assure concerns were being addressed related to the Avon
Park II water coming onto them, but they have to be responsible for the existing slopes on their property
themselves.
Mr. Craddock said he would like to get the letters from the bond company along with the other
things Mr. Cetta has agreed to do.
Ms. Mallek said that it would provide a lot of comfort to the process to get the letters.
Mr. Graham stated that he was doing everything possible to get that from the bonding company in
writing, and he feels there’s an obligation under the bond for them to provide that.
Mr. Rooker said that, although there’s not a connection between the two developments, Mr. Cetta
has an interest in seeing that the work gets done because ultimately there will be a single homeowners
association that will have to deal with any lingering, unsolved problems. He added that it also makes the
new development less attractive if these issues are still going on.
Mr. Davis asked if Mr. Cetta was requesting an indefinite deferral or deferral to a specific date.
Mr. Cetta responded that he wants to move forward, and Mr. Benish had said there might be space on the
Board’s December agenda.
Mr. Rooker asked if it needed to come back to the Planning Commission or have another public
hearing. Mr. Davis said that, provided the changes wouldn’t make the development more intensive, there
would be no legal requirement for an additional public hearing – and it would not have to go back go to the
Planning Commission unless the Board wants them to review the changes.
Mr. Snow stated that, even though it would not come back for public hearing, people could still
make comments at the beginning of the meeting.
Mr. Craddock then moved to defer ZMA-2012-0004 to December 9, 2013. Mr. Rooker seconded
the motion. Roll was called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow, Mr. Thomas, Mr. Boyd and Mr. Craddock.
NAYS: None.
_______________
Agenda Item No. 16. SDP-2013-31. Stonefield-Special Exception to Authorize Variations from
Application Plan and Code of Development (ZMA-2011-7).
Ms. Sarah Baldwin, Senior Planner, reported that the applicant is proposing two variations
containing multiple elements in Blocks F and G, and noted the blocks on the existing approved application
plan. Ms. Baldwin said the original rezoning always contemplated larger power-center buildings in Blocks
F and G, and depicted this area as major retail. She said the code of development specifically states that
the buildings in those blocks are intended for larger single tenants, but nothing requires the buildings in
these blocks to be two buildings or side by side – and the applicant can build one single big-box by right
under the code of development.
Ms. Baldwin stated that the applicant is proposing many variations, including the square footage,
but a variation is not needed for the change as the code of development already allows for flexibility in
square footage. She said the applicant is proposing a total of 190,000 square feet of buildings in these
blocks, and the approved code of development allows for a range of square footages – and block group
three, which contains Block F and Block G, allows a minimum of 125,000 square feet and a maximum of
210,000 square feet. Ms. Baldwin stated that the applicant is proposing to construct 190,000 square feet
in these blocks, which is 20,000 square feet under their current maximum square footage allowed. Since
the 190,000 square feet is within the limits of the approved rezoning, she said staff is comfortable that
there will be no increase in traffic intensity.
Ms. Baldwin said the code of development allowed for transfer of dwelling units and gross
leasable area within the three block groups, and also contemplated square footage limitations in block
groups one and two of 70,000 square feet, but not in block group three. She stated that Places 29
designates this area as commercial mixed use, with retail as the primary land use designation, and
recommends a maximum footprint of 80,000 square feet. Ms. Baldwin said the original rezoning approved
in 2003 pre-dates the approval of Places 29, which incorporated specific language regarding Albemarle
Place into their plan that permits the square footage approved with the rezoning. She stated that Places
29 specifically states: “The northern portion of the development north of Sperry Marine has been
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
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designed as a more conventional retail development. The land use pattern approved during the rezoning
has been incorporated into the future land use map. Places 29 does not further address building location,
orientation, or allocation of square footage in this area.”
Ms. Baldwin stated that variations are authorized and routinely granted for the types of changes
referenced in section 8.5.53 to allow for flexibility in planned developments, and the applicant is proposing
variations that include such changes as those referenced. She said all variations are analyzed by staff
using specific criteria, and the exhibits for the variations shown are slightly modified versions of what was
received in the staff report and Board packets. Ms. Baldwin stated that the area shown closest to Rt. 29
has had a travel way removed, which is the case with all of the exhibits, and variation 16 contains
elements A-E. She explained that element A proposes to alter the block boundaries to accommodate
change in building location and contain the parking area to serve block F as well as other issues, and the
phase is consistent with the application plan. Ms. Baldwin said element B modifies the alignment of
District Avenue as well as lane configuration changes; Area A is being modified from four lanes to a three
and two-lane configuration; Area B is being modified from four lanes to a three-lane configuration; and
Area C contains additional right of way where District Avenue can ultimately be widened. She stated that
it was determined that the roads as proposed will be able to handle the generated traffic.
Ms. Baldwin presented an enlarged copy of the approved plan showing the original District
Avenue alignment with the proposed variation. She said element C moves the eastern most future
connection point to align with the changes to District Avenue, and the future connection point – which is
consistent with the plan – will allow the possibility to serve as an inter-parcel connection.
Mr. Rooker pointed out that it’s not an approved connection from the other side, it’s just a potential
future connection if the Comdial property ever redevelops.
Ms. Baldwin reported that staff found the building changes to be acceptable, and the Architectural
Review Board (ARB) reviewed the orientation and will be having a work session on September 16 at which
time they will review more details. She said the proposed 6,000 square foot retail building adjacent to
Route 29 is shown over the former stormwater basin, which is consistent with the approved grading and
stormwater management plan where it was removed. Ms. Baldwin stated that the future pad site as
shown is not part of this variation, but is being addressed as part of the rezoning amendment to add a use
to the code of development.
Ms. Baldwin said staff analysis of variation 16, elements A-E is that the variations are consistent
with the goals and objectives of Places 29; density is not increased, it is merely shifted with the
development as is allowed by the code of development; the timing of phasing of the development is not
affected; a special use permit is not required; the variation is in general accord with the purpose and intent
of the approved rezoning application. Ms. Baldwin said that variation 17 includes the modification and
location of the Café Plaza area, and the applicant is proposing to construct an enhanced pedestrian
corridor area. She stated that staff found the proposed pedestrian area to be more appropriate, and it
would also provide pedestrian access into the development from Route 29 and the bus stop. Ms. Baldwin
said staff found variation 17 to be consistent with the Comp Plan and Places 29; density is not increased,
it is merely shifted; the timing and phasing of the development is unaffected; a special use permit is not
required; and the variation is in general accord with the application plan.
Ms. Baldwin stated that staff has two recommendations for approval of variation 16, elements A-E
with the exhibits; and variation 17 with the exhibits.
Ms. Mallek commented that the code of development for this particular project takes precedence
over the more general Comp Plan square footages, and she had initially been confused by that.
Mr. Rooker said the Comp Plan actually incorporated by reference the Code of Development in it
when speaking about this area.
Mr. Boyd asked if the numbering of the variations meant there had already been 15 other
variations on this project. Ms. Baldwin said there had been 15 others, and they had all been located on
the Town Center portion – and these were the first two variations on Blocks F and G.
Mr. Boyd said the whole project had changed quite a bit from the originally approved project.
Ms. Mallek said they may have been small, and she’d like to have some examples of what they
were.
Mr. Rooker said every variation request stands on its own, which is true on this project and every
other project. He said shifting a sidewalk location by 10 feet would necessitate a variation. He stated that
they have also had a rezoning approved for the project and an amendment to the rezoning approved for
any extensive changes, which were approved unanimously by the Board.
Mr. Boyd said his point was that the project had changed substantially over the evolution of the
project.
Mr. Benish stated that the variations are looked at as minor changes, such as the orientation of
Trader Joe’s being modified, as well as one of the other buildings in that general block, and modification
of stormwater detention in that block area as well.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 50)
Mr. Boyd asked if the prior variations were done mostly by staff, prior to the recent court case. Mr.
Benish responded that they’re done by staff, and the variation process is to allow for some flexibility in the
actual development of a site under the larger concepts of a rezoning, to meet the intent of the zoning but
allow for efficient and flexible changes for the development of the site. He stated that the flexibility has
become important for developers who are looking at making changes on a site when the changes are
relatively minor, providing they are consistent with the intent of the zoning.
Mr. Thomas asked if that’s what the special exception was all about. Mr. Benish clarified that it’s
the variation process, which is now required to go through a special exception process since the Sinclair
case.
Mr. Rooker mentioned that the 5th Street Avon shopping center came before the Board and had
changes of proffers, building in the floodplain, changes in building orientations, etc., with approval of two
boxes of 160,000 square feet each. He said Mr. Boyd’s quote then was that he didn’t want to put too
much specificity in the plan such that the applicant would have to come back and seek a variance from the
Board. Mr. Rooker stated that the variance process for minor items was a staff -approved process up until
the Sinclair case and, after that, the Board said that when staff recommended approval of a variance it
would come to them on a Consent Agenda. He said this was part of the streamlining of the development
review process, which Mr. Boyd championed, and it’s clear that the Board has taken the position that
variances are matters that staff should approve and that should be on the Consent Agenda – not requiring
experts to come in after staff has reviewed and recommended approval. Mr. Rooker said that, for some
reason, this applicant is being singled out.
Ms. Mallek said that the process is king, and the primary goal should be treating each applicant
fairly and consistently.
Mr. Craddock asked if the blocks have a certain amount of square footage allotted to them, and it
seems that this variation takes up some of the square footage from one of the buildings in Block G to add
to Block F. Mr. Benish confirmed that was the case.
Mr. Craddock said there was a lot of strife at the Planning Commission level over putting a big box
at Stonefield, and that’s why the original drawing for Albemarle Place showed two buildings – because a
big box was not thought to be in keeping with the development.
Ms. Mallek recalled that the plan was to have the big box on the road, which is why it caused
concern as opposed to being in the back corner.
Mr. Thomas and Mr. Craddock said that it was in the back corner in the original drawing.
Mr. Rooker said he was on the Planning Commission when this development was originally
approved, and he was on the Board of Supervisors when it was approved at the Board level. He stated
that there were two different elements to the plan initially – a town center element, which is to the south;
and the traditional shopping center element, which is to the north. Mr. Rooker said both the Board and the
Commission wanted to see a town center development built, and it was clear at the time that the
developer would not go forward with a plan that didn’t have a normal shopping center element on the north
side.
Ms. Mallek noted that they were going to do that part first.
Mr. Rooker confirmed that was the case originally, but this developer came in and did the town
center section – but it was clearly contemplated in the language of the approval that they could mass
square footage and move it around in the northern section, which is why this is consistent with plan of
development. He said Target is currently operating with 147,000 square feet, and Avon Park was just
approved with two 160,000 square foot boxes, potentially. Mr. Rooker stated that the code of
development clearly allowed them to move around the square footage within the northern section of the
plan.
Mr. Craddock agreed, but said he thought two buildings were proposed at Stonefield.
Ms. Mallek said two buildings were proposed in the first drawing, with potential for modification
depending on who the tenants would be. She stated that she was very hesitant to have staff approvals for
the changes based on this flexibility but, if the developer is meeting the requirements and the allowance
written into the code of development, then they’ve done their job.
The Chair opened the public hearing.
The applicant’s representative, Brad Dumont, addressed the Board on behalf of Stonefield’s
owner and operator, Edens Development. He asked Mr. Steve Blaine to speak to the Board about the
project.
Mr. Steve Blaine addressed the Board, stating that he is representing both Costco and the
applicant, and his remarks are on behalf of the applicant. Mr. Blaine said they are asking the Board for
minor variations from the application plan for an actual site plan for Phase II, which is the northern part of
Stonefield. He explained that this phase of the project has always been envisioned, since the rezoning 10
years ago, as a conventional retail development. He said the proposals include changes in the orientation
and location of the buildings; changes in the boundary between Blocks F and G; and two connection
points to adjoining projects – as well as internal road alignment. Mr. Blaine said variation 17 has to do
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with amenities that will not be shown on the ultimate plan, and he presented an overview of the approved
application plan. He stated that they broke the variations down into sub-categories dealing with specific
issues, and he noted on the plan provided how the variations had changed the building orientation and
locations, the boundary adjustments between the blocks, and the realignment of District Avenue. Mr.
Blaine explained that the realignment is largely to accommodate the change in the building orientation as
well as the block boundary. He showed boundary adjustments to the future extensions and noted that
there would only be changes to two potential connections to the adjacent property.
Mr. Blaine reported that the variations do not have to do with the size of the square footage of the
buildings themselves, and the proposed site plan doesn’t require a variation in the size of the square
footage because it’s already dealt with in the code of development – which allowed for changes in building
orientation and location, as well as adjustments of square footage, as long as the plan remained within the
range of 125,000 square feet up to 210,000 square feet. He said the applicant is within that range, with a
total of 170,000 square feet of major retail, which is 20,000 square feet below the maximum. Mr. Blaine
stated that, if the code of development had intended a building size limitation, it would have said that
expressly – and there is an express limitation in the code of development that pertains to the south side of
the project, which was clearly intended to be an urban style neighborhood development. He said the
applicant has, in essence, a by-right ability to build major retail in a single building up to 210,000 square
feet – and this proposed building for a Costco is 155,000 square feet.
Mr. Blaine stated that, on 15 prior occasions, the applicant has received approval from the
Director of Planning and, in each of those instances, the applicant followed the rules and procedures that
applied – as was the case with their proffer amendments also. He mentioned that a traffic analysis was
requested and provided for these variations, and the results indicate that there is no additional trip
generation by the proposed uses on this plan, and the total build-out is less than the projected traffic
impacts from the original rezoning. Mr. Blaine said that, when this was approved 10 years ago, there was
“negotiation” both at the Planning Commission and the Board levels as to the dichotomy of the two uses in
the project. He stated that there was vigorous debate about traffic and its impacts, and the applicant has
already invested $7.6 million in traffic improvements to address this type of development, so it was already
built into the original zoning. Mr. Blaine said traffic impacts cannot be a basis for denying the variations,
as the projected impacts are less than what would occur under the existing zoning.
Mr. Blaine stated that the variations are consistent with the Comprehensive Plan, and the proposal
supports the primary goals of the Economic Vitality Action Plan as adopted by the Board in August 2010
as part of the Comprehensive Plan, by expanding the commercial tax base and by supporting the creation
of quality jobs for residents. Mr. Blaine said the Places 29 recommendations came into effect well after
the rezoning, in 2012, and there cannot be a Comp Plan recommendation that is inconsistent with the
underlying zoning, particularly where there is a proffered zoning as the applicant has a vested right in
those uses. He stated that recommending 80,000 square feet is effectively a down-zoning or taking. Mr.
Blaine said the applicant has lived up to his end of the bargain made at the original zoning by investing
over $7 million in road improvements, not including the $800,000 in road improvements contributed to the
City for improvements along Route 29.
Mr. Blaine said the Board should not lose sight of the contributions to the community that Costco
will bring, with average sales at a Costco store equaling $155 million per year, resulting in an estimated $5
million in new annual sales tax revenue for the County and the Commonwealth. He stated that the real
estate tax base on this property will put an additional $78,000 in the County’s annual budget. Mr. Blaine
said Costco stores employ an average of 242 people, and is consistently rated as one of the best retail
employers in the U.S. – paying an average hourly wage of $20.51 as compared to the U.S. average of
$10.24. He stated that a full-time cashier’s salary after five years is $50,000, and there are numerous
benefits along with salary including college student retention, mental health coverage, life insurance,
dental, and a 401k plan.
Mr. Boyd asked how many additional trips would be added to the Hydraulic Road/Route 29
intersection with the changes, and what the traffic count was when this was initially approved. Mr. Rooker
said he has those numbers from VDOT, and clarified that the project was approved in 2003. He explained
that additional traffic improvements since that time have actually reduced the traffic on Route 29.
Mr. Boyd asked how much more traffic would this development add.
Mr. Eric Strohacker addressed the Board, stating that he is a traffic engineer with Bowman
Consulting. He said there was an original study done in April 2001 which was revised in January 2002,
and the latter study was used for the Comp Plan and the rezoning. Mr. Strohacker said the 2002 study
had a total of 7,404 vehicles during weekday PM peak hour at the intersection of Hydraulic and Route 29.
He stated that, around 2010 or 2011, they were asked by VDOT to validate those numbers, so VDOT
provided traffic count information at that intersection – and his firm confirmed that the numbers had
dropped to 6,777 in 2009. Mr. Strohacker said they then projected the number out to a build-out year of
2012, and the actual projected number from the original 2002 study had 8,476 vehicles – but with existing
conditions, the number is about 1,500 less, and that was used in the 2003 rezoning. He stated that the
trip generation for the entire site is essentially being reduced over what was approved.
Mr. Rooker said he was very interested in this as well, given that it’s in his district, and the
developer has a right to build this as approved. He stated that, based upon the traffic analysis at the time
of approval, there were $7.5 million in traffic improvements required through proffers in order for them to
go forward with the development. Mr. Rooker said traffic has actually been reduced, and the potential use
of this property as designed in the variations generates slightly less traffic than the original build-out.
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Mr. Boyd asked the traffic engineer to find out the additional traffic generated by this particular
development at that intersection. Mr. Blaine said it is important because the improvements the applicant
was responsible for depended upon those projections, and they’ve already made those improvements and
have lived up to their part of the bargain – anticipating that this phase can be developed as contemplated
in the code of development.
Mr. Jim Morris addressed the Board, stating that he has lived in the Jack Jouett District for 30
years and recalls that this development was built on the premise that it would be a neighborhood
development which their website says has been “carefully crafted to be both innovative and appealing as it
blends with the individual look of each retailer…intimate gathering places for neighbors to sit and
reconnect…another way to build vibrant environment that invites shoppers not only to visit but to return
again.” Mr. Morris said that the term “power center” then surfaces in the ARB meeting, which is a “retail
killer of like kind businesses…[and] functions similar to traditional shopping malls, but are primarily built
around movement and access capabilities of private vehicles rather than pedestrian foot traffic.” He
stated that the term he was seeking was “category killer,” as retailers seek to dominate particular
categories of products or services offering large numbers of SKUs or stock-keeping units at prices
consummate with high-volume turnover. Mr. Morris said the code of development states that the “overall
design of buildings should have a human scale…integral to the building and the site design.” He stated
that this is described as a minor variation, but the size and scale of the development generates high traffic
volume.
Ms. Betty Sevachko addressed the Board, stating that she has lived in Albemarle for 27 years and
is entirely in favor of the Costco store coming. Ms. Sevachko said she is a senior citizen on a fixed
income, and Costco will be great competition for Sam’s Club, Wal-Mart, and Kroger. She stated that
residents need to have good quality at competitive prices and if they want to deal with the traffic problems
they need to get the bypass through. Ms. Sevachko said Costco will be a good employer and good for the
tax base of the County, and asked the Board to let this go through – as it would benefit the County, the
taxpayer, and the neighborhood.
Ms. Claire Johnson addressed the Board, stating that she didn’t know who was involved in the
planning of Stonefield, but it is not car friendly and it is difficult to park in order to access shops and
restaurants. Ms. Johnson said that the traffic study was done before Whole Foods was put in across the
street, and she is appalled by the traffic and what they are letting happen in that corridor.
Mr. Rich McPhillips addressed the Board, stating that he is with Johnson Development Associates
– developers of Stonefield Commons, an apartment complex next to the shops. He said his company has
worked with Edens over the last few years and has had a very positive experience, as they have a great
reputation of creating vibrant, mixed-use communities. Mr. McPhillips said Costco would be a very
positive addition to the overall development, and would provide residents an alternative to other retail. He
added that his company is very supportive of it and is confident they will do a good job with that building.
Ms. Mary Knapp addressed the Board, stating that she is president-elect of the Rotary Club of
Rockingham County and is the Membership Marketer for Costco in Harrisonburg. Ms. Knapp said she
worked in the nonprofit fund-raising and marketing sector prior to working for Costco, and found the
company to be supportive of local human service charities through donations made to the Rotary Club’s
annual raffle and silent auction. She stated that, when the Rotary Club joined a UVA project to help
construct a water filter factory in South Africa, Costco donated items for their silent auction – and to date,
Costco has helped the Rotary Club raise over $39,000 for that project. Ms. Knapp said Costco’s
warehouses across the east coast donated items for victims of Hurricane Sandy, including the
Harrisonburg location. She stated that the company and its employees are proud to actively give back
and be a community resource for more than just quality products at low prices. Ms. Knapp said a Costco
business member who owns a small café outside of town commented that the company treats their
employees well and is a real asset to the community and, in her eyes, the company is a “local business
and an asset to her community.” She stated that the company’s resources and spirit leaves the
community better for the investments its makes year after year.
Ms. Cindy Harman addressed the Board, stating that she is an 18-year employee of Costco in
Harrisonburg, starting at age 18 with the idea of having a job just to get her through college. Ms. Harman
said that, since graduating, she has had several positions within the company and was promoted three
years ago to assistant general manager of the Harrisonburg location. She said Costco is actively involved
in the local United Way, and she has represented the company on the United Way Volunteer Council –
and since 2002, their store has raised over $194,000 to help fund organizations throughout the
community. Ms. Harman reported that, in 2011, the store received the “Dynamic Community Award” for
its efforts in the United Way campaign that year, and employees have been actively participating in the
United Way “Day of Caring” for the last three years. She stated that over that time period, her store and
its employees have donated over 1,400 backpacks for children in need. Ms. Harman recounted a recent
incident in which a traveling Boy Scout troop was able to shop at the store for supplies after regular
business hours, and was also fed at no charge through the assistance of employees who prepared food
for them.
Ms. Carolyn Hopper addressed the Board, stating that she has been an employee at Costco since
1996 and was initially hired as a seasonal employee – but is now administration manager. She stated that
many companies do not hire within, but Costco does, and the Harrisonburg store is always looking for
ways to give back to the community. Ms. Hopper said she received the United Way Volunteer of the Year
award for Rockingham County in 1996, and served as chair the following year. She stated that
employees are very active in fundraising for charities such as the March of Dimes, the Boys and Girls
Club, and the Autism Walk. Ms. Hopper said one of her favorite nonprofit activities is the Children’s
Miracle Network and, this year, the Costco in Harrisonburg presented a check to the UVA Children’s
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Hospital for $23,800. She stated that, since 2001, they’ve raised a total of $187,000 for the hospital.
Ms. Anita Schwartz addressed the Board, stating that she is General Manager of the Costco in
Harrisonburg and a 29-year employee of the company. Ms. Schwartz said she began working for the
Price Club in Richmond in 1984 as a seasonal employee to earn extra money for Christmas, but ended up
staying on as a full-time employee because it paid more than her bank loan officer job. She stated that,
during the last 25 years, she has worked her way up through management positions at Costco – and
almost 99% of the company’s promotions are from within. Ms. Schwartz said she, along with her husband
and her brother have worked for Costco, and employees love the company – which has excellent pay
unmatched by other retailers, great benefits and insurance for both full and part-time employees,
generous vacations, a 401k plan, and advancement opportunities. She stated that the store is closed on
major holidays, allowing employees to be home with their families.
Ms. John Pritzlaff addressed the Board, stating that no one has an issue with Costco coming to
Albemarle County, and the issue is with the process by which “the largest and tallest box ever in the
history of Albemarle County” has been pushed through the process with a series of variations that no one
has really heard about. Mr. Pritzlaff said, as he understands it, any variation going forward has to follow
the existing Comprehensive Plan, and that plan says that a mixed commercial box size can go only up to
approximately 80,000 square feet per variation. He asked for some clarification regarding that issue.
Ms. Mallek said that relates to her earlier question about the code of development overriding the
Comp Plan numbers.
Mr. Rooker said the Comp Plan incorporated the code of development and, during the Places 29
discussion, there was a lot of concern and Mr. Boyd was very interested in making certain that no existing
zoning rights were taken away by the Comprehensive Plan, and that is always the case. He stated that
you don’t lose existing zoning rights because of a Comp Plan change, but if you wanted to rezone later,
you would look to the Comp Plan to see if it was an appropriate rezoning.
Mr. Michael Hughes addressed the Board, stating that he is a long-time resident of Albemarle
County and is currently the Facility and Real Estate Manager at Northrup Grumman. Mr. Hughes said,
over the last 10 years since selling this property, they have been closely involved in the project and he has
worked very closely with the current developer to ensure that the many contractual, legal and financial
obligations have been met. He stated that Edens has done a very good job of meeting those obligations,
as there have been some very extensive property agreements and am endments. Mr. Hughes said they
have also been very good neighbors and have made his life much easier in dealing with employees
moving around the Stonefield construction site, by being proactive and efficient in working with Northrup to
address those issues and solve problems. He stated that they have further agreements pertaining to the
north side of the property, and he is confident that they will be just as professional and timely in meeting
those obligations. Mr. Hughes stated that he spends a lot of time in traffic on Rt. 29 going north to the big
box stores, and he would be happy to have a much shorter commute by having Costco as a neighbor.
Mr. Mark Baker addressed the Board, stating that he is a member of the Richmond law firm, Roth
Doner Jackson. Mr. Baker said his firm has a local client who is opposed to the special exception adding
that this is not about Costco, it’s about the process. He stated that Section 8.5.5.3 must be consistent with
the Comp Plan and must be in general accord with the intent of the approved application, and he
disagreed that there is a “right” to do this because it is in the code of development. Mr. Baker said the
code of development stipulates that there can be flexibility in the blocks of up to 15%, so this is not a
down-zoning, and this request for a special exception gives the Board the right to look at the Master Plan,
the Comp Plan, and also the intent of the original plan. He stated that the Comp Plan is a sophisticated
document with a lot of work invested in it, and all of those elements were in place before this ZMA. Mr.
Baker said it’s been bolstered since then with an 80,000 square foot cap in the Places 29 Master Plan and
reinforcement through the Neighborhood Model, and there was lots of discussion and public input during
the 29 master planning process which talked about maximum footprints. He said, given all of these
factors, the Board should send this request back for a ZMA amendment, as dictated by code based on his
interpretation.
Mr. Rooker asked if Mr. Baker could disclose the name of his client. Mr. Baker responded that he
is not at liberty to disclose his client’s identity.
Mr. Dan Venable addressed the Board, stating that he is in charge of real estate for Costco and
has been working this market for a number of years and has toured it numerous times. Mr. Venable said
the president and CEO of Costco, Jim Sinegal, has visited the market, and everyone at Costco involved is
excited about coming to Charlottesville and to this particular location in Albemarle County. Mr. Venable
said they have selected the location because it is the center of retail and where the retail traffic is, and
they don’t anticipate adding much traffic because everyone is passing by this location anyway. He stated
that they are so sure it’s the best location for Costco to operate, they’re willing to commit that if they don’t
get this particular site, they will pack their bags and not enter the Charlottesville market.
Mr. J.P. Williamson addressed the Board, stating that his comments aren’t negative toward
Costco but relate instead to the process. Mr. Williamson said the question is what’s minor versus major,
and his understanding of the process of going through a neighborhood model and code of development is
that it allows for minor variations as a way to facilitate unforeseen conditions. He stated that, in his mind,
this crosses into “major,” and the process by which to deal with that is a zoning map amendment – and
that’s his understanding as well as the community’s. Mr. Williamson said, if the Board is changing the
direction of that, it’s a “precedent-setting event,” and cautioned the Board to be careful in the decision.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
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Mr. Blaine addressed the Board again and said that Mr. Strohacker would respond to the earlier
question regarding traffic data for that particular intersection.
Mr. Strohacker said the earlier question was how much site traffic would be added to the
intersection of Hydraulic and Route 29 and, in the original 2002 study, there was a total of 1,044 vehicles
per hour added to that intersection during PM peak hour conditions under the total build-out of the
development. He said that the current plan would add a total of 886 vehicles per hour during PM peak
hour conditions.
Mr. Thomas asked if that 800+ would be added to the existing 7,000 on Hydraulic. Mr. Strohacker
said that would be an accurate estimate, with the actual original study showing 1,044 on top of 8,500
vehicles, and the second study reducing the number to about 7,500 total.
Mr. Blaine stated that the applicant has met with adjoining property owners and Northrup
Grumman and, unlike similar rezonings, there has been no neighborhood opposition to this. He said the
attorney representing an undisclosed client referenced Planning Commission minutes, but the final action
on zoning is the Board of Supervisors. Mr. Blaine stated that there was a compromise at the Board level
to allow that applicant to build what the County wanted – the town center model – first; and the bargain
was that the owner/developer would be able to develop a more conventional shopping center in the
second part of the development. Mr. Blaine said this is not a “category killer,” as Costco sells a wide
variety of products which will actually help reduce traffic from having to make other stops. He stated that,
if an applicant has battled through a rezoning, they’re not going to let a subsequent Comp Plan
amendment – which has general recommendations – take away the earned property rights of an
applicant. Mr. Blaine said he would advocate that for any developer, whether it was here or 5th Street or
any another location.
Mr. Snow asked Mr. Davis for clarification of Section 8.5.5.3 and asked him to explain what it
means and what it legally provides for.
Mr. Davis explained that those are the parameters for what can be granted as a variation as set
out in the zoning ordinance, and staff has identified the types of changes that are allowed by variation in
regard to this particular application. He said this includes “changes to the arrangements of buildings,
provided the major elements and relationships remain the same,” and staff’s analysis was that those
major elements were not affected by the re-orientation and relocation of buildings as shown on the
proposed plan. Mr. Davis said there was a change to the phasing of plans related to the moving of the
lines between the blocks, which would allow the phasing, and staff determined there were minor changes
to the street design and street location, which was the changing of the road alignment by moving it closer
to Route 29 but not substantially.
Mr. Snow asked about the comment made that this was the largest and tallest building in the
County. Mr. Benish said the applicant could comment on that, but urged the Board to keep in mind that
there are no limitations established in the code specific to the building square footage or height other than
the normal zoning requirements – which this building would comply with.
Mr. Rooker noted that the Hyatt Hotel is much higher than this building would be, pointing out that
buildings are subject to code height limitations applied generally throughout the County. He said Costco
would not be anywhere near that height.
Mr. Boyd said that this is different than what the ARB originally approved.
Mr. Rooker said the ARB has already looked at this proposal and approved it and, if they require
something that’s within their parameters, then the applicant would need to meet it in order to move
forward.
Mr. Boyd asked if there was already some discrepancy between the ARB and the developers
regarding colors of the exterior and the height.
Mr. Rooker said he had contacted Amelia McCulley to check on that and found out that the
material is weathered copper, which was material approved by the ARB, and it will age and eventually go
to one color. He stated that, if there is a violation, the applicant would be cited and would have to correct
it.
Mr. Davis clarified that there is not a variation being requested on the size of the building and,
under the code of development, it allows the building size to be what is being presented by the applicant –
so it is consistent with the code of development and does not require the Board to act. He said that
what’s before the Board tonight is orientation and location of the buildings.
Mr. Rooker said that this is in his district, and most of the calls he has received about this
application have been positive. He stated that there is not a room full of people complaining about the fact
that Costco might come into this center. Mr. Rooker said he was on the Planning Commission and the
Board that approved it, and there was considerable discussion about the balance in the style of
development of a neighborhood center and a traditional shopping center. He said that is what was
approved, and the current application is a minor request for variations having to do with design and layout
on the northern section of the development. Mr. Rooker said it is not a change or amendment to the
zoning on the property; it is not something that increases the square footage of commercial development
allowed – it is actually 20% less than allowable build-out; it does not approve any size building that isn’t
already allowed under the code of development; and staff has assured him that the variations would result
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(Page 55)
in less traffic impacts than the original plan. He stated that they can’t go back to 2003 and re-litigate what
the Board previously decided. He said everything the applicant has done is consistent with the plan that
the Board approved. Mr. Rooker said the variations do not give rise to an increase in traffic, and actually
reduce it. He stated that staff has determined that this is consistent with the Comp Plan, and these minor
changes have been looked at and approved by the ARB.
Mr. Rooker said one would have to ask why this applicant is being treated differently, and he has
to question why this isn’t a Consent Agenda item, and wondered why it was added to the regular agenda.
He noted that, when they approved the Avon development, there was concern about “too much specificity”
in the plans that would cause applicants to have to come back and spend more time, effort and money.
Mr. Rooker said this is the only developer that has actually built a town center of any size, despite the
unfulfilled promises of other developers. He stated that this Board has strongly supported economic
vitality, seeking to attract quality jobs to this community – and Costco is coming before them in
accordance with an approved plan, offering to bring 250 jobs to the community that pay an average of
over $20 per hour, paying comprehensive benefits to all employees regardless of full and part-time status.
Mr. Rooker noted that Costco’s intention is to set up a training program with the Chamber to train local
people to take those jobs immediately, and the company is regularly recognized as one of the best
employers in the country to work for – and he asked if the Board is prepared to snub this based on
reasons that aren’t even in line with what’s recognized in the ordinances. He said that, in looking at
County tax data, Stonefield has had a significant impact on the increases taking place in 2011 and 2012,
and one store’s move can have a major impact on tax revenues.
Mr. Rooker emphasized that this is not a case where the Board is being asked to bend the rules –
it’s a case of the Board being asked to follow the rules.
Mr. Boyd thanked the Harrisonburg Costco employees for being here and said he knows that it is
a terrific company that would bring great jobs to the area, adding that his position has to do more with the
density and intensity of a particular site and location. He said he didn’t appreciate the “threat” from the
Costco representative about not locating elsewhere in the community, as it’s not something that this
community has allowed before. Mr. Boyd said he doesn’t think the density and intensity of this particular
request is something he can vote for, so he will oppose this particular location. He stated that he is willing
to take the chance of them not locating here.
Mr. Rooker asked Mr. Boyd to comment on the fact that the staff report has said the variation
request actually reduces the traffic load from the development over the plan without the variation. Mr.
Boyd said he doesn’t happen to agree with staff on this, pointing out that he was elected to represent the
people of the community and staff wasn’t. He said he wouldn’t continue to argue it, because he would
vote against it.
Mr. Rooker stated that he didn’t expect Mr. Boyd to change his position, because he knows who’s
opposing it and it’s more about who’s opposing it than the plan itself.
Ms. Mallek said she was hoping for the residents of Crozet and western Albemarle that it would be
located in a site closer to there but, in talking to staff, it was clear that the County doesn’t have the power
to tell people where they have to invest – and as long as they follow the rules, they can locate where they
want. She stated that it’s not their job as a Board or a staff to say “you can come over here but you can’t
come over here.”
Mr. Boyd said, in looking at the Comp Plan amendments earlier today, both Ms. Mallek and Mr.
Rooker said they had every intent of doing zoning and applications around where the proper location is for
people in the community.
Ms. Mallek said that means the general zone and pertains to commercial versus rural locations.
Mr. Rooker stated that this is not a rezoning.
Mr. Boyd said that it was an opportunity for Board members to say whether this was the proper
place to put that kind of density and intensity.
Mr. Rooker stated that another store could come in and build a 200,000+ square foot building, and
it wouldn’t require a variation.
Mr. Boyd said that it’s a very difficult intersection there.
Mr. Snow said he tries to be consistent in his decisions, and his original reasons for voting against
it have been met and would vote in favor of the variation.
Mr. Rooker moved to approve the variations as stated in the application for variations #16, #17
and Exhibits A-E, as recommended by staff. Ms. Mallek seconded the motion.
Mr. Thomas said the County can use the tax revenue from this type of store, and he would rather
have the store on the south side of town but, as a Board, it cannot dictate that, and he would support the
variation.
Mr. Boyd said this is about whether or not this is the right location.
September 11, 2013 (Afternoon-Adjourned and Regular Night Meeting)
(Page 56)
Mr. Craddock stated that the attorney representing the “unknown client” had the best points and,
to him, this opens the door because a big box shouldn’t go in that location, adding that the plan was vetted
in front of the Commission and Board many years ago.
Mr. Rooker said the Board did not pass what the Planning Commission endorsed, and what’s
binding on the plan is what the Board of Supervisors approved.
Mr. Craddock stated that the drawing still shows two separate buildings.
Mr. Rooker said the Code of Development says you can move around the square footage.
Mr. Boyd stated that this should have been a full public hearing with proper public notification
because, without that, people aren’t paying attention to the meetings.
Mr. Rooker said someone put flyers in every mailbox in the community talking about “New York
developers” coming in, and that person has even put up a website against it. He stated that there has
been a funded campaign against this, and that wasn’t done by everyday citizens.
Roll was then called and the motion carried by the following recorded vote:
AYES: Ms. Mallek, Mr. Rooker, Mr. Snow and Mr. Thomas.
NAYS: Mr. Boyd and Mr. Craddock.
Ms. Mallek commented that she is glad this was approved because, if the Board hadn’t gone
ahead with it, they would have overturned the entire process the Board has spent years developing –
which included setting up the variation process to begin with.
Mr. Rooker said, had this not been approved, the precedent this would have established in
undermining future developments which have already been approved and where money has already been
invested on the front end would have been catastrophic.
_______________
Agenda Item No. 17. From the Board: Committee Reports and Matters Not Listed on the Agenda.
There were none.
_______________
Agenda Item No. 18. From the County Executive: Report on Matters Not Listed on the Agenda.
There were none.
_______________
Agenda Item No. 19. Adjourn.
At 10:40 p.m., with no further business to come before the Board, the meeting was adjourned.
________________________________________
Chairman
Approved by Board
Date: 05/14/2014
Initials: EW J