HomeMy Public PortalAbout06 02 16 PC Minutes�� - O F
T Z
F P C 7 '
L ��R c 1 N ��P ' "
T h e T o w n o f L e e s b u r g i n V i r g i n i a
L e e s b u r g P l a n n i n g C o m m i s s i o n
M e e t i n g M i n u t e s
J u n e 2 , 2 0 1 6
T h e L e e s b u r g P l a n n i n g C o m m i s s i o n m e t o n T h u r s d a y , J u n e 2 , 2 0 1 6 i n t h e T o w n C o u n c i l
C h a m b e r , 2 5 W e s t M a r k e t S t r e e t , L e e s b u r g , V A 2 0 1 7 6 . S t a f f m e m b e r s p r e s e n t w e r e S u s a n
B e r r y - H i l l , C h r i s M u r p h y , B a r b a r a N o t a r , a n d K a r e n C i c a l e s e .
C A L L T O O R D E R
T h e m e e t i n g w a s c a l l e d t o o r d e r a t 7 : 0 2 p m b y C h a i r m a n W e l s h C h a m b l i n
P L E D G E O F A L L E G I A N C E A N D R O L L C A L L
M e m b e r s P r e s e n t : C h a i r m a n W e l s h C h a m b l i n , C o m m i s s i o n e r s B a b b i n , B a r n e s , B u r k e , K i d d e r ,
H a r p e r a n d R o b i n s o n a n d V i c e M a y o r B u r k
A D O P T I O N O F A G E N D A
M o t i o n : C o m m i s s i o n e r R o b i n s o n
S e c o n d : C o m m i s s i o n e r K i d d e r
V o t e : 7 - 0
A P P R O V A L O F M I N U T E S
M a y 1 9 , 2 0 1 6
M o t i o n : C o m m i s s i o n e r H a r p e r
S e c o n d : C o m m i s s i o n e r R o b i n s o n
V o t e : 6 - 0 - 1 ( C o m m i s s i o n e r B u r k a b s t a i n e d a s h e w a s n o t p r e s e n t a t t h e l a s t m e e t i n g )
D I S C L O S U R E O F M E E T I N G S
N o n e
C H A I R M A N ' S S T A T E M E N T
C h a i r m a n W e l s h C h a m b l i n n o t e d t h a t t h e r e w a s a f u l l a g e n d a a n d s h e w a s l o o k i n g f o r w a r d t o a n
e v e n i n g o f g o o d d i s c u s s i o n .
P E T I T I O N E R S
N o n e
P U B L I C H E A R I N G
T L T A - 2 0 1 6 - 0 0 0 1 T o w n P l a n A m e n d m e n t T e l e c o m m u n i c a t i o n s P o l i c i e s a n d
T L O A - 2 0 1 6 - 0 0 0 1 Z o n i n g T e x t A m e n d m e n t T e l e c o m m u n i c a t i o n F a c i l i t i e s P u b l i c
H e a r i n g S u s a n B e r r y - H i l l , D i r e c t o r , D e p a r t m e n t o f P l a n n i n g a n d Z o n i n g a n d C h r i s
M u r p h y , Z o n i n g A d m i n i s t r a t o r
C h a i r m a n W e l s h C h a m b l i n o p e n e d t h e P u b l i c H e a r i n g a t 7 : 0 4 p m
1
Leesburg Planning Commission
June 2, 2016 Minutes
Susan Berry -Hill, Director, Department of Planning and Zoning, gave a brief history of the
proposed Town Plan amendment. The amendment was prompted by a presentation given by
Mr. Ed Donahue, of the law firm Donahue & Stearns, in which he proposed zoning text
amendments that would allow greater distribution of certain types of telecommunication
facilities, particularly Distributed Antenna Systems (DAS) and Small Cell systems as by -right
uses in all districts. After this presentation, staff met with Mr. Donohue and representatives
from Verizon to discuss the proposal. On January 12, 2016 Town Council approved
Resolution 2016-009, to initiate zoning ordinance text amendments to consider Mr. Donahue's
proposal. As staff began work on the text amendments it became clear that the Town Plan
needed to be updated as well. The Town Plan amendment was initiated by Town Council on
April 26, 2016 to accompany the Zoning Ordinance Text Amendment, TLOA 2016-00015 to
update policies pertaining to telecommunication facilities. The plan amendments and zoning
text amendments attempt to consider current advancements in the telecommunications industry
and streamline the review process for certain types of facilities subject to performance
standards. This Town Plan amendment proposes to update the Town Plan policy on such
facilities by adding locational criteria and general performance standards for certain types of
telecommunication facilities and it will provide guidance as to whether a commission permit is
necessary for the establishment of such facilities when considering whether the facility is a
normal extension of established wireless communications networks.
Ms. Berry -Hill explained that the preferred approach to telecom expansion is collocation of
antenna on existing buildings, towers, monopole structures, and poles. DAS and Small Cell
antennas are generally considered part of the telecom network and commission permits are not
required subject to performance standards that address general size, camouflaging and
placement of the antenna. DAS and Small Cell types can include omnidirectional/whip
antenna, panels, and antenna enclosed within cylinders. These types of facilities diminish the
need for larger facilities such as monopoles and towers which have a greater visual impact on a
community.
Ms. Berry -Hill further explained that our Town Plan contains only one policy statement
regarding telecommunication. Staff is proposing that that statement be stricken and replaced
with more expansive policy guidance on telecommunications. The proposed language seeks to
accomplish the following:
• Retain policy guidance to collocate telecom facilities.
• Provide new locational guidance to encourage location of new large-scale telecom
monopoles and towers in industrial and/or employment areas or in utility corridors.
• Add policy to encourage minimization of new towers or monopoles by using antennas
that are collocated on existing buildings, structures, or poles subject to performance
standards. Commission permits will not be required if performance standards are met.
• Add policy guidance to specifically include DAS and Small Cell facilities as
`antenna' as part of a telecom network. When consistent with performance standards
a commission permit will not be required.
• Add general performance standards.
2
Leesburg Planning Commission
June 2, 2016 Minutes
Ms. Berry -Hill concluded her presentation and invited Chris Murphy, Zoning Administrator, to
present the proposed Zoning Ordinance amendment.
Mr. Murphy explained that Town Council adopted resolution No. 2016-009 on January 12,
2016 to address anticipated telecommunications service demands in Leesburg and to incorporate
new technologies that may be deployed throughout the Town. The Council's action to initiate
these amendments followed a presentation to Town Council by a telecommunications service
provider's representative who asked Council to consider expanding existing telecommunications
regulation in the Zoning Ordinance to allow deployment of new antenna technology application
throughout a larger area of Town. The proposed text amendments consider expanding the types
of permissible telecommunications facilities and the districts where such facilities are permitted
Additionally, the amendments consider how to streamline the review process for certain types of
facilities through the use of performance standards.
Currently the Zoning Ordinance provides for four types of permissible wireless
telecommunication facilities which include:
• Antennas — permitted by -right in the 0-1, B-1, B-2, B-3, B-4, I-1, CD-MUR, CD -CC,
CD-MUO districts
• and CD -C districts
• Monopole/Power Mount, Facilities — permitted by special exception in the B-2, B-3, and
I-1 districts
• Transmission Tower (lattice type) — permitted by special exception in the B-2 and
1-1 districts
• Temporary Mobile Land -Based Telecom Testing Facilities — permitted by right in the
R -E, R-1, R-2, R-4, R-6, RHD, R-8, R-16, R-22, O-1, B-1, B-25 B-3, B-4 and I-1 districts
Mr. Murphy provided a brief overview of DAS and Small Cell systems which take signal and
split the transmissions among several antenna separated in a space that provides better coverage
for voice and data within that space served by the particular deployment. Small Cell applications
are a series of small antenna physically connected, typically, by fiber optic lines to a controller
unit connected to a macro cell connected to the main wireless network. Such applications are
used to enhance signal strength or to fill in holes in a wireless network and extend its broad range
of services to a very narrowly defined area where there is a great demand for wireless service,
e.g. malls, hotels, transportation hubs, campuses, stadiums, etc. They can be collocated on
buildings or structures where antennas are allowed, or on light poles and utility poles. DAS is
also an integrated solution for coverage enhancement of wireless systems much like Small Cells,
but DAS applications provide service within a building (iDAS) or specific geographic area
(oDAS) where service is degraded due to geography, foliage or structure interference. This type
of deployment is typically installed on utility/telephone poles, street lamps, or traffic signal
poles.
Mr. Murphy explained that the current draft of the ordinance permits Small Cell and/or DAS
applications on utility poles within the right-of-way of Local Collectors of higher classification
3
Leesburg Planning Commission
June 2, 2016 Minutes
roadways. Installation on utility poles requires the consent of the utility company who require
that specific standards be met by the cell service providers. Another option that is also provided
in the current regulations is power mount facilities on existing electric transmission poles. There
is potential opportunity to enhance telecommunications service coverage in Town by taking
advantage of existing Dominion Power electric transmission towers along the Route 7/Bypass
Corridor. Most of the towers that run along the Bypass, especially south of downtown, are
situated if R -Districts or in Planned Districts and are currently ineligible for installation of
facilities like Power -Mounts (antenna arrays installed on utility transmission towers).
Mr. Murphy noted that the proposed amendments would do the following:
• Establish definitions in Article 18 for Distributed Antenna Systems and Small Cell
• Amend the Use Table in Sec. 9.2 to permit both Small Cell and/or DAS system
deployments by -right, with use standards in all zoning districts. In addition, allowing
Power Mount Facilities on existing Electric Transmission Towers in the R -E, R-1, R-4,
O-1 and B-4 by special exception
• Establish minimum Use Standards for Small Cells and DAS applications by amending
Sec. 9.3.26 and by adding Paragraph F. (Distributed Antenna Systems (DAS) and/or
Small Cells).
• Establishing Small Cell and/or Distributed Antenna Systems (DAS) in the corresponding
Use Regulations tables in Articles 5, 6 and 7 for the applicable zoning districts where that
use will be permissible by -right or by special exception
• Establishing Power Mount Facilities on existing Electric Transmission Towers in the
corresponding Use Regulations tables in Articles 5, 6, 7, and 8 for the applicable zoning
districts where that use will be permissible by special exception.
Mr. Murphy concluded his presentation with staff's recommendation of approval.
Chairman Welsh Chamblin invited public comment.
Frank Stearns, Donahue & Stearns, 201 Liberty Street, Leesburg, VA 20175 came forward in
support of the Town Plan Amendment and Zoning Ordinance Text Amendment. There is a huge
demand for wireless service and this is an evolving industry. DAS and Small Cells help deliver
the spectrum that is necessary. This will not eliminate the need for macro -cells but it will make
them more efficient thereby reducing the number of macro -cells needed.
Chairman Welsh Chamblin solicited clarifying questions from the Planning Commission
members.
Commissioner Harper noted that the subject of this amendment was very technical and beyond
the scope of the Commission and Planning and Zoning staff and recommended that it be sent for
review to the Technology and Communication Commission who could the come back to staff
with their findings to be discussed at a future meeting.
4
Leesburg Planning Commission
June 2, 2016 Minutes
Commissioner Babbin noted that she did not have a problem referring this to the Technology and
Communication Commission but would like to attach time constraints to ensure that is reviewed
expeditiously.
Commissioner Babbin asked for clarification on the power pole ownership. Mr. Murphy
explained that the image shown to the Planning Commission only showed the location of the
Dominion Virginia poles. No data is available for NOVEC poles as they will not release that
information. Commissioner Babbin asked if there were contracts between carriers and the
utility pole owners that would give preferential treatment to one carrier over another. Mr.
Stearns answered that the FCC has mandated that no pole owner can restrict its poles to only one
carrier. Any power pole that would hold communication equipment had to be made available at
a fair price to all licensees. Commissioner Babbin asked Barbara Notar, Town Attorney, to
come back with information confirming the validity of Mr. Stearns statement regarding the FCC
regulations.
Commissioner Babbin asked if the Town had any existing contracts or policies related to
contracts that allow collocating these systems on traffic light poles. Ms. Notar responded that
this is currently not allowed and would be part of the Planning Commission's decision. Mr.
Murphy responded that the Town requires right-of-way permits for these types of things and that
staff would research this in addition to the franchise agreements mentioned previously and will
return to the Planning Commission with additional information when they resume discussion on
this amendment.
Commissioner Robinson suggested adding overhead signs as well.
Commissioner Babbin agreed and noted the she would like to include anything that is owned by
the Town that would be a possible source of compensation for the placement of these devices.
Commissioner Burk noted that there is a typo on the TLTA-2016-0001 staff report on Page 5; 3rd
paragraph where the word "area" was used which should be corrected to "are". He also
referenced the TLOA-2016-0001 staff report, specifically a picture on Page 1, which depicts an
equipment cabinet placed in the sidewalk adjacent to a traffic light. He expressed concern about
this type of design impeding pedestrian right-of-ways and suggested that language be added to
the zoning ordinance to specifically address this concern.
Mr. Murphy responded that public sidewalks must meet ADA standards but was agreeable to
add specific language as requested.
Commissioner Robinson expressed concerns regarding the placement of devices on existing
telephone poles located in the middle of a sidewalk and felt that those poles should be banned
from collocation use as the bottom of the pole.
Commissioner Robinson asked Mr. Stearns to clarify what he meant by renting facilities. Mr.
Stearns explained that providers, such as Verizon, have to rent the space they locate on from the
property owner.
5
Leesburg Planning Commission
June 2, 2016 Minutes
Commissioner Robinson asked who is responsible for the implementation of a DAS system. Mr,
Stearns explained that typically the tenants or building owners will notify their carrier that they
are not getting good coverage in a particular area, building, etc. The carrier would then be
responsible for implementing the DAS system. Commissioner Robinson asked for examples of
area in the Town that would be utilized for both types of systems. Mr. Stearns answered that a
DAS system would be used at the Outlet Mall in Leesburg and a Small Cell system would be
better at a heavily traversed intersection such as Route 7 and the Bypass as there is a heavy
amount of traffic at certain times of the day. Commissioner Robinson asked what would happen
if the Town made the decision to bring underground utilities. Mr. Stearns answered that if the
poles are removed the facilities would come down.
Commissioner Kidder asked if the proposed performance standards had been reviewed by the
BAR. Mr. Murphy responded that they had not. Commissioner Kidder expressed concern on the
visual impact on a neighborhood and suggested that the proposed standards be reviewed by the
BAR.
Commissioner Babbin asked for clarification regarding the types of roads this would be allowed
on. Mr. Murphy explained that they are allowed on local collector and higher rated
classifications. There are some road segments that traverse through the H-1 and H-2 overlays.
In those instances a Certificate of Appropriateness would be required.
Commissioner Barnes asked if there had been research done on the impacts of microwave
transmissions in terms of frequency interruption and health effects. Mr. Murphy responded they
had not and noted that federal law prohibits an approval or denial based on potential adverse
health effects.
Chairman Welsh Chamblin closed the public hearing at 7:55 pm and solicited Planning
Commission discussion and comments.
Commissioner Babbin noted that she did not have a problem referring this to the Technology
and Communications Commission as she had raised questions previously that she would like
to have answered. She was, however, not in favor of having the BAR review the
performance standards since a Certificate of Appropriateness was already required for
locations within the H-1 and H-2 overlay districts.
Commissioner Burk was in favor of sending this to the Technology and Communications
Commission and did not have strong feeling either way with regard to the BAR review
suggested.
Commissioner Robinson asked if everything that was by -right required a COA. Mr. Murphy
responded that a COA would be required if it were located within the H-1 and H-2 districts.
Commissioner Kidder wished to reiterate that it was her feeling that this should also be
referred to the BAR.
Commissioner Barnes noted that he did not see a problem sending it to the BAR as they
Leesburg Planning Commission
June 2, 2016 Minutes
could review it at the same time as the Technology and Communications Commission.
Chairman Welsh Chamblin noted her agreement to collaborate with the Technology and
Communications Commission. She did not feel it was necessary that this go to the BAR for
comment; however she offered to bring this up at the next BAR meeting and would return to
the Planning Commission with their comments and suggestions; if any. She did think that a
timeline should be mandated for the Technology and Communications Commission review.
Ms. Berry -Hill noted that she had spoken to the Liaison of the Commission and that this
could go as soon as next Tuesday, June7th.
A straw poll was taken to determine if the Planning Commission wished to have BAR
comment on the proposed amendments.
The majority of Commissioners were not in favor of a BAR referral and were comfortable
with their liaison bringing this forward to the BAR.
After further discussion it was determined to refer the draft Zoning Ordinance Text
Amendment to the Technology and Communications Commission. Specific questions posed
by PC members include the following:
• Will the proposed definitions for Distributed Antenna Systems and Small Cell
antenna apply to other telecom vendors, such as Sprint, AT&T, etc.?
• Are these definitions broad enough to stand the test of time and advancements in
technology?
• Proposed amendments shown on Slide 18 — of the staff presentation- which identifies
particular changes that are proposed by referencing the associated staff report for the
zoning amendment
• Can DAS/Small Cell antenna be located within buildings and under what
circumstances?
It was also determined to continue further discussion on both the proposed Town Plan
Amendment and Zoning Ordinance Text Amendment to the August 4, 2016 Planning
Commission meeting to allow sufficient time for review and staff analysis.
SUBDIVISION AND LAND DEVELOPMENT
None
ZONING
McLister Off-site Parking — Chris Murphy, Zoning Administrator
Mr. Murphy explained that Michael Mclister has proposed the redevelopment of 107 W.
Loudoun Street that includes a total of five multi -family dwelling units; four two bedroom units
and one (1) one bedroom unit. Zoning Ordinance Section 11.3 provides parking ratios for multi-
family dwelling units that equal 1.5 per dwelling unit per efficiency and one bedroom units and
7
Leesburg Planning Commission
June 2, 2016 Minutes
2.0 per dwelling unit for two bedroom units. The required parking for 107 W Loudoun Street
amounts to ten spaces; 8 spaces for the four two bedroom units and 1.5 spaces for the one
bedroom unit (numbers of .5 of higher are rounded up). There are no parking spaces provided at
107 W Loudoun Street leaving a parking deficiency of ten spaces. Because the subject property
is situated within the H-1 Overlay District, this parking deficiency can be made up by providing
the required minimum parking spaces off-site in accordance with Zoning Ordinance Section
11.4.1. Specifically 11.4.1 stipulated the following, in pertinent part:
The Planning Commission may authorize the utilization of off-site parking areas for uses within
nonresidential zoning districts, and anywhere within the H-1 Overlay District ... if the Planning
Commission determines that there are practical difficulties in satisfying the parking requirements
on-site and/or that the public safety or convenience would be better served by an off-site
location.
In addition to owning 107 W. Loudoun St., Mr. McLister has also acquired property from Dr.
Akbar located on Wirt Street where there is an existing parking lot. In accordance with Section
11.4.1, he is requesting the Planning Commission to authorize the use of the Wirt Street Lot for
the parking required by the proposed residential units on 107 W Loudoun Street. There are
minimum conditions that must be met for off-site parking. Listed below are the minimum
requirements and staff's findings:
1. The owner of a site utilizing an off-site parking area to satisfy on-site parking
requirements shall deliver evidence satisfactory to the Town of the owner's right
to use the off-site parking area by license, deed, easement, or by long-term lease
which has a term equal to or exceeding the projected life of the facility to which
the parking is appurtenant and available for use. Such evidence shall be recorded
at the owner's expense in the land records of Loudoun County, Virginia. In
addition, the owners of the site and the off-site parking area shall be bound by
recorded covenants requiring the owners and all subsequent owners, heirs, or
assigns, to maintain the required number of off-street parking spaces during the
existence of the use to which the parking is appurtenant. Where a parking right is
created under this section it shall not be subject to divestment except with the
prior approval of the Town.
Staff notes that if the proposed off-site parking is authorized by the Planning
Commission, Mr. McLister will be required to record a license, deed, easement or
some other document establishing the rights of all subsequent owners, heirs, or
assigns the right to utilize the Wirt Street parking lot during the existence of the
use for which the parking is appurtenant.
2. Pedestrian access shall be available within a walking distance of 500 feet for
nonresidential uses and 3 00 feet for residential uses, measured from the nearest point of
the building lot to an entrance to the parking area, except that where valet parking is
authorized, such off-site parking may be located anywhere within the R -HD and B-1
Districts.
E•3
Leesburg Planning Commission
June 2, 2016 Minutes
Staff notes that the measurement from the nearest point of the building at 107 W
Loudoun Street to the entrance of the Wirt Street lot, via public rights-of-way, is
approximately 249 feet, and falls under the 300 foot maximum distance established for
residential uses.
3. Such separated parking areas shall be usable without causing unreasonable traffic
congestion, detriment to any residential neighborhood, or hazard to pedestrians.
Staff notes the existing parking on the Wirt Street Lot has historically been used
without any known detriment to the neighborhood resulting from traffic
congestion, or hazard to pedestrians. Staff does not foresee any negative impacts
caused by allowing residential parking at the Wirt Street Lot for the dwellings
located on 107 W. Loudoun Street.
The calculation of the number of required parking spaces provided above indicates that there is a
deficiency of ten (10) parking spaces that must be addressed before Mr. McLister can obtain
permits for the total number of dwelling units he is currently proposing at 107 W Loudoun
Street. The Wirt Street Lot is currently paved and striped for eight (8) parking spaces and was
formerly utilized by Dr. Akbar's medical practice. Although the lot does not meet current lot
design standards it can continue to be used as is, however any improvements to this lot must
conform to current design standards.
Assuming the Planning Commission approves the use of the eight (8) off-site parking spaces for
required parking on 107 W Loudoun Street, the following two options are available to Mr.
McLister to mitigate the deficiency in required parking spaces:
1. Reduce the total number of required parking spaces. The two (2) space deficit can be
addressed through reducing the number of dwelling units being proposed. In this case, by
eliminating any one of the apartments being proposed at 107 W Loudoun the deficit is
eliminated; or,
2. Pay in Lieu. Because the property at 107 W Loudoun meets the minimum qualifications
for payment in -lieu as stipulated in Zoning Ordinance Section 11.4.3 the required parking
on 107 W. Loudoun can be bought. The current price per space is currently $6,270, for a
total (x2), today, of $12,540 payable prior to issuance of Occupancy Permit. (Note that
the current payment in lieu rate is now tied to the annual adjustment of the US Dept. of
Labor CPI. On January 1 of each year, the adjusted rate will be applied.)
Mr. Murphy concluded his presentation with a staff recommendation that the Planning
Commission approve the use of off-site parking contingent upon the conditions enumerated in
the staff report dated June 2, 2016.
Chairman Welsh Chamblin solicited the Planning Commission member for questions, comments
and discussion.
D
Leesburg Planning Commission
June 2, 2016 Minutes
Commissioner Barnes expressed concern regarding the payment in lieu option and noted his
support for the elimination of one of the proposed units.
Michael McLister, Applicant, requested the opportunity to speak as he had another option to
propose.
Chairman Welsh Chamblin explained that this was not a public hearing and noted that the
appropriate time for him to address the Planning Commission was during the Petitioner Section
at the beginning of the meeting. Since he was in not in attendance during this time, she would
make an exception and allow him to address the Commission after all the members had had an
opportunity to comment on the application.
Commissioner Kidder asked if those spaces would legally belong to the apartments at 107 W
Loudoun Street. Mr. Murphy explained that there would have to be an easement for the use of
that property; not an ownership. If the Planning Commission approves off-site parking for this
use the regulation would require that there would be something in place to allow residents of the
apartments to park. The parking spaces are required because of the proposed residential use. If
the use were to change to a nonresidential use the parking would not be required.
Commissioner Robinson asked for clarification regarding ownership of the Wirt Street Lot. Mr.
Murphy responded that Mr. McLister owned the Wirt Street Lot property, 107 W. Loudoun
Street and a portion of 105 W Loudoun Street as it is a condominium regime. Commissioner
Robinson asked how a resident of 107 W Loudoun would access the Wirt Street Lot. Mr.
Murphy explained that the distance from the parking to the residences was measured along the
public right-of-ways in accordance with the zoning ordinance requirements. The measurement is
249 feet and falls under the 300 foot requirement. Commissioner Robinson asked for
clarification on the current payment -in -lieu fee and inquired as to the current cost of a parking
space. Mr. Murphy clarified that the current payment in lieu fee was $6,270.00 and answered
that a structured space fell within the $30,000.00 range surface parking fell within the low
$20,000.00 range.
Commissioner Kidder asked who owned the driveway between the two buildings and which part
of 105 W Loudoun did Mr. McLister own. Mr. Murphy responded that the owners of 105 W
Loudoun Street and 107 W Loudoun Street own the driveway with the majority of the driveway
being located on 105 W Loudoun Street. Mr. McLister owns one of the internal units on 105 W
Loudoun Street. Mr. Murphy clarified that 105 W Loudoun Street was not included in this
application.
Commissioner Burk noted that some Commission members, he included, have expressed a level
of discomfort with the payment in lieu ordinance and asked if the Commission had the authority
to prevent an applicant from exercising this option. Mr. Murphy responded that they did not
have the authority to prohibit the use of payment in lieu. Commissioner Burk noted that the
application met the requirements for off-site parking and that the Planning Commission was not
responsible for decisions regarding the payment in lieu fee and/or an applicant's right to exercise
this ordinance as this fell outside of their purview and therefore did not need to be discussed
further.
10
Leesburg Planning Commission
June 2, 2016 Minutes
Commissioner Babbin noted her agreement with Commissioner Burk and her desire to hear the
other option Mr. McLister was proposing. Commissioner Babbin clarified that there are a total
of eight spaces on the Wirt Street Lot which had been used previously for patient parking for Dr.
Akbar's office which was located at 105 W Loudoun Street. She asked if 105 W Loudoun was
used strictly for commercial uses. Mr. Murphy explained that the Town knows that there are
offices in this location however there were no records of residential uses being built in this
location. Commissioner Babbin expressed concern regarding impinging on other people's use of
the lot; even if it wasn't by -right. Mr. Murphy answered that he did not know of any other legal
obligations that Mr. McLister may have acquired when he bought the property.
Chairman Welsh Chamblin noted that these items will be discussed when Mr. McLister
addresses the Commission regarding his proposal to add an additional space to the Wirt Street
lot. Mr. Murphy explained that there is an issue with the width of the proposed additional space
as it does not conform to the travel aisle. This ninth space would need to meet the current
standards for parking lots.
Commissioner Barnes asked for clarification on the Planning Commission's role regarding this
application. Mr. Murphy explained that Mr. McLister is requesting to use off-site parking which
he can't do unless the Commission allows him to do so. There are complications with this
application in that the residential uses he is developing require ten parking spaces. The off-site
lot that he is proposing to use only has eight (spaces leaving a deficit of two spaces. He has the
option of eliminating one unit which would reduce the required parking to eight spaces or ha can
pay in lieu for those two spaces.
Commissioner Robinson asked if the Planning Commission could mandate that he chose one
option over another. Mr. Murphy answered that the Planning Commission could make a
recommendation of approval contingent upon the applicant exercising one option or the other;
however, the applicant gets to choose which option he would like to use to satisfy the parking
requirement.
Commissioner Harper declined comment as she wished to hear Mr. McLister's proposal first.
Mr. McLister discussed the current parking situation in town noting that in his opinion it hinders
the development community greatly. Projects are not done because the parking is not affordable.
He is requesting that he be credited two parking spaces deemed as preexisting conditions where
the previous owner utilized the second floor on the south side of the building on 107 W Loudoun
Street as a two bedroom apartment. The apartment had a full bath and separate living room. As
with many historical properties that were once residences, the owner had not logged in with
planning and zoning as living space and mixed use. However, it was visualized and confirmed
as living space by Loudoun County Building and Development during their site visit in
September of 2015. If the two bedroom unit is grandfathered as good will and a preexisting
condition, the parking requirement will be reduced to 7.5 (8 if rounded up) spaces which can be
met by the Wirt Street lot.
11
Leesburg Planning Commission
June 2, 2016 Minutes
Commissioner Welsh Chamblin solicited the Planning Commission for questions, comments and
discussions.
Commissioner Babbin noted that during a rezoning application an applicant wishing to have
reductions in required parking submits a modification request. In this case, Mr. McLister is
asking for good will in regards to grandfathering the apartment at 107 W Loudoun Street and
asked if the Planning Commission has the authority to grant this or does he have to come in with
a modification request. Mr. Murphy explained that there is no record of an apartment in the
building at 107 W Loudoun Street. The Town requires a zoning permit to establish the use
which has not been done. Commission Babbin clarified that her question was more general and
pertained to whether or not the Planning Commission had the authority to issue a waiver or
gesture of good will if it was felt, by the Commission, that the number of required spaces could
be reduced due to the circumstances presented. Mr. Murphy answered that the Planning
Commission did not have the authority to do so. Commissioner Babbin then asked if there was a
procedure in place that would allow Mr. McLister to get the modification he was requesting.
Ms. Berry -Hill responded that the Downtown is very different than many of the suburban
districts where developers ask for modification. Modifications are different in the H-1 and
payment in lieu could be looked at as a modification. On-site parking is not required if a
developer chooses to pay in lieu. The Planning Commission does not have the authority to
waive payment in lieu.
Mr. McLister responded that he would like to pull his application as he did not think it was fair
that payment in lieu could not be waived. He noted that he could get a statement from the
building official attesting viewing the living quarters at 107 W Loudoun Street.
Mr. Murphy explained that even if the building official verifies that there is an existing
apartment at 107 W Loudoun Street; parking would be required for that unit. The Planning
Commission does not have the authority to waive or modify parking requirements.
Mr. McLister argued that there is a regulation that if there is an existing apartment than the use is
changed from that point forward. For example, if you are making three apartment and one
already exists you only need to provide two parking spots.
Mr. Murphy explained that the Town requires parking for residential but not for non-residential
uses because residents need to be provided a place to park where they live. In our ordinance,
even in the event of shared use, the Town allows for waivers based on time of use and time of
day factors for commercial which would not work for residential uses.
Commissioner Burk commented that the statement could be made that it is not possible to reduce
the number of spaces required because people need to park; however the payment in lieu option
does not create additional parking spaces.
Commissioner Babbin commented that this was a change of use for a portion of the building; not
the entire building as there is an existing apartment. She asked staff if it can be acknowledged
that the change of use was only for a portion of the building and thereby reduce the required
12
Leesburg Planning Commission
June 2, 2016 Minutes
parking from ten spaces to eight spaces. Mr. Murphy responded that the Town had no record of
an apartment being legally established in that building.
Commissioner Burk asked if, hypothetically, there was documentation that an apartment had
been established in that building; would we then be able to credit the two spaces for the
preexisting apartment. Mr. Murphy responded that they could if there had been documentation
and a permit had been issued for the apartment regardless of whether parking was provided for
the unit or not. The issuance of a permit is a significant government act. If that were the case
the applicant would need to park the additional five units being developed in that building.
Commissioner Babbin asked Ms. Notar if there is a provision in the ordinance that addresses
long standing, unrecorded residential uses. Ms. Notar explained that this was not something that
she has had experience with. She suggested that this application be postponed to the next
Planning Commission meeting to allow staff time to do additional research as she was
unprepared to discuss this aspect this evening.
Commissioner Kidder noted that she was very uncomfortable with this discussion as she felt that
there was one Commission member negotiating with the applicant. Payment in lieu was
established years ago with a purpose and it was her opinion that it was not something that the
Planning Commission can disregard. She also noted that it is not a matter of good will for the
Planning Commission to disregard the parking requirement. She asked Mr. McLister if the
existing apartment will remain in its current condition and be the only part of the building that is
unchanged. Mr. McLister answered that it would not remain in its current condition.
Commissioner Kidder responded that in her opinion, the changes to the existing apartment
constitute something new and therefore the requirements should apply.
Chairman Welsh Chamblin asked if it would be possible, on the left side of the Wirt Street Lot,
to put in a parallel space which would then count as the 9th space. Mr. Murphy explained that
the new space needs to conform to current design and would interfere with the required travel
lane. The easement would have to be closed.
Commissioner Barnes asked Mr. McLister if he would be willing to close the easement. Mr.
McLister answered that he would rather not do so.
Chairman Welsh Chamblin noted that the staff report states that Mr. McLister needs to provide
an easement to guarantee parking in perpetuity for the residents of the apartments at 107 W
Loudoun Street. Ms. Notar clarified that it had to be a legal agreement recorded in the land
records that gives the people who reside in these apartment the right to park in the Wirt Street
Lot. Commissioner Welsh Chamblin asked if either property were sold, would the easement
carry with the property to ensure the residents of 107 W Loudoun Street could continue to park
in that lot. Ms. Notar answered that it would.
Mr. McLister responded that he would not be willing to provide this agreement.
13
Leesburg Planning Commission
June Z. 2016 Minutes
Chairman Welsh Chamblin asked if the two existing parking spaces at 105 W Loudoun Street
could be utilized to fulfill the additional required parking. Mr. McLister responded that he had
included those parking spaces in his proposal.
After further discussion, it was determined to continue discussion on this application to the next
meeting on June 16, 2016.
COMPREHENSIVE PLANNING
None
COUNCIL AND REPRESENTATIVES REPORT
None
STAFF AND COMMITTEE REPORTS
Commission Harper informed the Commission that the EDC did not meet due to a lack of a
quorum.
Commissioner Robinson reported that she attended the Envision East Market stakeholder's
meeting Wednesday evening. There was a small turnout comprised of mostly developers. The
ideas discussed pertained to the northwestern section of the area.. There was both a
philosophical discussion and a planning discussion. Transportation was the largest concern and
there was discussion regarding the incorporation of that section of the property with the existing
residential to the north and the Outlet Mall to the northwest.
STAFF DISCUSSION
SB549 Proffer Bill Legislation Briefing — Barbara Notar, Town Attorney
Ms. Notar gave a briefing on the new proffer legislation bill SB549 in which she gave an
overview of the following:
Review of the New Statute:
Under the current section, which controls proffers in the Town (15.2.2303), the proffers need not
be directly necessitated by the rezoning, but they must be reasonable and voluntary. Under
existing law, as long as a proffer is voluntary, it is arguably valid. The new law allows an
applicant to challenge the reasonableness of a proffer even if voluntarily submitted.
The new statute only applies to new residential developments and any new residential use. The
new statute contains definitions for proffers both onsite proffers and offsite proffers. An onsite
proffer is defined as "A proffer addressing an impact within the boundaries of the property to be
developed and shall not include any cash proffers." An offsite proffer is defined as "A proffer
addressing an impact outside the boundaries of the property to be developed an shall include all
cash proffers." The new statute prohibits a locality from requesting or accepting any
unreasonable proffer in connection with a rezoning or a proffer condition amendment as a
condition of approval of a new residential development or new residential use and denial of any
14
Leesburg Planning Commission
June 2, 2016 Minutes
rezoning application or proffer condition amendment for a new residential use where such denial
is based in whole or in part on an applicant's failure or refusal to submit an unreasonable proffer
or proffer condition amendment. Onsite or offsite proffers are unreasonable unless they address
an impact that is specifically attributable to the proposed residential development. Offsite
proffers are unreasonable unless they address impact on an offsite public facility such that the
new residential development creates a need, or an identifiable portion of a need, for one or more
public facility improvements in excess of existing public facility capacity at the time of the
rezoning and receives a direct and material benefit from the proffer.
New Statute Legal Actions and Burdens:
The new statute allows an unreasonable proffer to be struck entirely by the court but also allows
a court-ordered approval of the rezoning without the "unreasonable proffer" included. Thus, the
entire proffer would be lost, even if it was only marginally unreasonable. Upon success, an
applicant may be entitled to attorney's fees, costs and a court order to the Town Council to
approve the application, as requested, without any unreasonable proffer.
Exceptions to the New Statute:
Exception #1: The new restrictions do not apply to an approved small area comprehensive plan
that:
1. Is designated as a revitalization area
2. Encompasses mass transit (including bus)
3. Includes mixed-use development; and
4. Allows a density of at least 3.0 floor area ratio (FAR) in a portion of
5. Must have all four elements to meet this exception
Exception 92: The new restrictions don not apply to an approved small area comprehensive
plan that:
1. (a) Encompasses an existing or planned Metrorail station, or (b) is adjacent to a Metrorail
station located in a neighboring locality, AND
2. Allows additional density within the vicinity of such existing or planned station.
Exception 43: The new restrictions do not apply to an approved service district created pursuant
to 15.2-2400 that encompasses an existing or planned Metrorail station.
As Loudoun County may fall into one or more of these exceptions, the County's blueprint for
future action will be different from the Town's.
Staff Recommendations for New Rezoning Applications:
1. The Zoning Ordinance must be reviewed to comply with the new law;
2. The Comprehensive Plan must be reviewed to evaluate whether amendments are
necessary as the Comprehensive Plan will dictate the public infrastructure and
facilities necessary for new residential developments and was passed with the
expectations of proffers under the 15.202303 regime;
3. Proffer guidelines must be evaluated and possibly abolished so as not to assist an
applicant who argues that an unreasonable proffer was "suggested, requested or
accepted";
15
Leesburg Planning Commission
June 2, 2016 Minutes
4. If proffers are submitted by an applicant to Town staff, Planning Commission or
Town Council members, the proffers must be in writing;
5. Likewise, any and all suggestions by Town staff, Planning Commission and Town
Council members to alter the proffers submitted by an applicant must be in writing;
6. All written proffers must be reviewed by the Town Attorney;
7. If proffers are submitted by an applicant, proffers must include detailed analysis or
"impact studies" that demonstrate that the proffer address the impacts of the
rezoning and that they are reasonable under the law;
8. Application fees should be increased to hire a consultant to assist the Town in
verifying applicants' impact studies as well as determining impacts to public
facilities for each individual residential rezoning application. Reimbursement by
applicants may be possible for the Town's analysis of applicants' impact studies.
Town staff also recommends the following additional steps should be taken to comply with
the new law:
9. Applicant -initiated Town Plan Amendments should be no longer be accepted by the
Town;
10. Town staff should begin the procurement process to hire a consultant who will
review applicants' impact studies and assist the Town in determining the impacts to
public facilities for individual rezoning applications; and
11. Contact County staff to discuss their assistance in establishing updated school
capital intensity factors to be used by the Town under the new law.
Ms. Notar, Ms. Berry -Hill, and Mr. Murphy will be returning to Town Council at their June 27,
2016 Work Session with an updated briefing and at the June 28, 2016 meeting they will be
initiating resolutions before Town Council to gain their approval to initiate changes to the
Zoning Ordinance and the Comprehensive Plan.
OLD BUSINESS
None
NEW BUSINESS
None
ADJOURNMENT
The Meeting was adjourned at 10:07 pm
Appy oved by:
�e
V
°Karen Cicalese, Commission Clerk
R
ndsay Wel Chamblin, Chairman
16