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Leesburg Planning Commission
Meeting Minutes
August 4, 2016
The Leesburg Planning Commission met on Thursday, August 4, 2016 in the Town Council
Chamber, 25 West Market Street, Leesburg, VA 20176. Staff members present were Susan
Berry -Hill, Brian Boucher, Chris Murphy, Barbara Notar, and Karen Cicalese.
CALL TO ORDER
The meeting was called to order at 7:01 pm by Commissioner Robinson
PLEDGE OF ALLEGIANCE AND ROLL CALL
Members Present: Commissioners Babbin, Barnes, Harper, Kidder, and Robinson
Absent: Chairman Welsh-Chamblin, Commissioner Kidder, and Vice Mayor Burk
ADOPTION OF AGENDA
Motion: Commissioner Harper
Second: Commissioner Barnes
Commissioner Harper asked if the agenda included Barbara Notar's briefing on the SB549
Proffer Interim Policy as it was not included on the agenda sent in their packets.
Susan Berry -Hill, Director, Department of Planning and Zoning, responded that she had sent an
email to the Commission on Monday that it would be added under "Old Business" and
apologized for any confusion.
Commissioner Harper modified her motion to adopt the agenda as amended.
Vote: 5-0-2 (Kidder and Welsh Chamblin absent)
APPROVAL OF MINUTES
July 21, 2016
Motion: Commissioner Barnes
Second: Commissioner Harper
Vote: 3-2-2 (Babbin and Burk abstained as they were not present at the last meeting; Kidder and
Welsh Chamblin absent)
DISCLOSURE OF MEETINGS
None
CHAIRMAN'S STATEMENT
None
PETITIONERS
None
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PUBLIC HEARING
TLZM-2016-0002 and TLSE-2016-0002 Village at Leesburg Self Storage on Land Bay
D, Irish Grandfield, Sr. Planner
Commissioner Robinson opened the public hearing at 7:05 pm and invited staff to make their
presentation.
Brian Boucher, Deputy Director, Department of Planning and Zoning informed the
Commission that Irish Grandfield was not able to make the meeting and that he would be
making staff s presentation in his absence.
Mr. Boucher explained that there were two land development applications being considered
this evening; TLZM-2016-0002 which is a request for a proffer amendment to add two
allowable uses (mini -warehouse and commuter parking lot) to the Village at Leesburg I-1
zoned lands (Land Bays D and E totaling 47.1 acres) and TLSE-2016-0002 which is a
request to allow a 110,000 s.f. mini -warehouse on a portion of Land Bay D (2.37 acres).
TLZM-2016-0002 Proffer Amendment
Mr. Boucher discussed the site noting that Route 7 is located north of the site and Golf Club
Road is located to the east of the site. Major gas, water, and electrical transmission lines
exist on portions of both Land Bay D and Land Bay E. The planned land use for this area is
Regional Office. Objectives of Regional Office include development be compatible with
Town character and increase business and employment. The property is zoned I-1 and is
subject to the proffers of TLZM-2010-0003 which limit uses to ten activities.
Staff has determined that adding the ability for Land Bays D and E at Village at Leesburg to have
the mini -warehouse use and allow a commuter parking lot is consistent with the existing I-1
zoning and character of these land bays. This application meets the rezoning criteria as it is
consistent with the Town Plan, consistent with binding agreements with Loudoun County, traffic
impacts are mitigated as the entrance to the site will be on Golf Club Drive and the use generates
minimal usage. Additionally the use is compatible with surrounding use, adequate public
facilities are provided, and no new cash contributions are proffered as they will adhere to the
existing proffered fire and rescue contribution. Staff recommends forwarding a recommendation
of approval for this application.
TLSE-2016-0002 Special Exception
Mr. Boucher explained that the applicant is proposing a forty-eight foot tall, 110,000 s.f, building.
He discussed traffic circulation, loading bays and parking requirements. The parking is located
in the front of the building. Six parking spaces are required per the ordinance however the
applicant has proposed thirteen. The warehouse use does not require parking; however the
building will house a 1,300 s.f. office which needs to provide parking. The dumpster enclosure
will be on the north end of the site and is well screened from Route 7. The ordinance requires a
ten foot buffer around the dumpster enclosure which is what the applicant has proposed. The
following use standards and applicant compliance were discussed:
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August 4, 2016 Minutes
1. Storage units shall be provided for long term storage only, and all storage shall be within
completely enclosed buildings. — Special Exception Condition #4 ensures compliance
with this standard.
2. Loading docks shall not be permitted. —No loading docks are proposed, only surface level
loading spaces.
3. Except for the purpose of loading and unloading, there shall be no incidental parking or
storage of trucks and/or moving vans. — Special Exception Condition #5 ensures
compliance with this standard.
4. No office, retail or wholesale use of storage units shall be permitted. — None is proposed
and Condition #6 of Special Exception approval prohibits such use.
5. One accessory residential unit may be permitted solely for the use of a caretaker or
watchman. — None is proposed.
6. The outdoor storage area, loading, or parking shall be limited to areas designated on an
approved site plan, and adequately screened from adjacent properties and roadways, Such
areas shall not be used for the storage or display of inoperable vehicles as defined in
Section 32-147 of the Town Code. — A site plan will be submitted following approval of
the special exception. No outdoor storage or loading dock is proposed. Parking and other
areas are effectively screened. Special Exception Condition #7 ensures that no inoperable
vehicles will be stored onsite.
Staff has determined that the proposed mini -warehouse site is appropriately designed and the
applicant has proffered to meet the
H-2 Design Guidelines to ensure appropriate building design. At their June 6, 2016 meeting, the
BAR endorsed the conceptual appearance: height, scale, massing, fagade, orientation, building
foot print and placement. This application meets the specific use standards of the Zoning
Ordinance as well as the special exception criteria with the following proposed conditions:
• Use will not adversely affect use of neighboring properties
• Use shall comply with the Zoning Ordinance and the Town Plan
• The location, size and height of buildings, etc., and the nature of screening will not hinder
appropriate development of adjacent land and buildings
• Traffic will not be hazardous nor conflict with expected traffic in the neighborhood
Mr. Boucher explained that staff has granted the requested modification to reduce the required
height of the loading space from 15" to 14", and the required loading spaces from 5 to 4.
Additional conditions of approval include a storm water management capacity demonstration for
pipes and wet pond on Land Bay E; stormwater quality must meet new standards; mechanical
equipment will be screened from view from Route 7; and a sprinkler system is required for fire
suppression. Mr. Boucher concluded his presentation with staff's recommendation of approval
subject to the conditions specified in the August 4, 2016 staff report.
Molly Novotny, Urban Planner, Cooley, representative for the applicant, delivered the applicant's
presentation. She was accompanied by representatives from Johnson Development. Ms.
Novotny noted that they have worked very closely with staff. She explained that at the time that
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the Village at Leesburg proffers were first approved and subsequently amended; mini -warehouse
and commuter parking lot were not contemplated uses in the I-1 district. Design options were
discussed and the BAR did approve the size, scale, mass and location, but asked that they return
with architecture. They have an agreement to return to discuss architecture once the zoning has
been approved. In the meantime they have already begun working on some options. She
discussed the three options and showed illustrations. The first option was what was seen by the
BAR. The second option changes the upper level by replacing EFIS to hardy board based on a
BAR recommendation and also adds real windows. The third option is more warehouse in
appearance as the BAR noted that the building did not have to look like the Village at Leesburg
as it is located across the street. Ms. Novotny addressed storm water management and clarified
that they have agreed to not just study the capacity; there is a condition of approval that requires
that they upsize the size of the pipes if needed. She concluded her presentation with a request for
questions from the Commissioners.
Commissioner Harper requested that the provision for a caretaker residence be removed and
inquired as to whether there would be retail sales in the office for items such as tape and boxes.
She also asked about proposed security. Ms. Novotny answered that the office facility that is
planned will sell boxes and tape and there are no plans for a caretaker to reside on site. The
concept plan indicates zero parking spaces provided for a caretaker which prohibits a caretaker
from residing on site.
Commissioner Barnes asked about security and fencing which Commissioner Harper inquired
about and had not been addressed. Hunter Dawkins, Johnson Development, answered they do
not offer twenty-four hour access to any of their facilities. There will be a gate that restricts
access to the drive thru and will restrict after-hours access. The hours of operation are 6:00 AM
to 10:00 PM.
Commissioner Robinson asked for clarification on the proffered residential unit on site. Ms.
Novotny responded that there are no plans for a residential unit. Commissioner Robinson asked
to have that stricken from the proffer amendment. Ms. Novotny explained that the zoning
ordinance allows one residential unit for a caretaker; however they are not proposing to do so and
can condition it out of the proffer amendment.
Commissioner Robinson noted that the property sits lower than Crosstrail Boulevard at the bridge
over Route 7, and asked for an estimate as to how much of the roof of the building will be visible
at that point. Ryan Davis, Urban Engineering, responded that he did not have the elevation of
the bridge on -hand. Crosstrail Boulevard is approximately 10' to 12' higher and the roof will be
visible. It will be harder to see from Route 7 as there are trees to screen the view. Commissioner
Robinson asked if the applicant was planning to mask the utilities on the roof. Ms. Novotny
answered that they were planning to work with the BAR to mask utilities mounted on the roof.
Commissioner Robinson asked if the commuter parking lot would be accessible from Golf Club
Drive. Mr. Boucher answered that it would not; the only buildings that are to be located north of
the county development are the proposed warehouse and the gas facility next to it. The commuter
parking lot will be accessed from Russell Branch Parkway.
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Commissioner Robinson asked for public comment. Seeing none, she closed the public hearing
and solicited Commission member discussion.
Commissioner Babbin noted that she wished to add two additional conditions to the motion to
provide for adequate masking of utilities and that the BAR considers adoption of architectural
options 1 and 2 only. Option 3 is not compatible with the H-2 district. Mr. Boucher explained
the roof top equipment is required to be screened by condition of approval 910 and that the
Commission could recommend a design preference.
Commissioner Burk noted that here may be more options presented suggested adding
"architecture consistent with option 1 or option 2".
Ms. Novotny clarified that the only option formally presented to the BAR was Option 1. The
BAR challenged them to return with a variation of the fourth floor to replace the material being
used which is represented in Option 2. The BAR also said that they could utilize more industrial
architecture which is reflected in Option 3. The BAR has not seen Options 2 and 3.
Commissioner Harper requested that the motion include the removal of the caretaker residence
from the proffer amendment.
Commissioner Robinson called for the motion.
Commissioner Babbin made the following motion:
I move that Zoning Map Amendment TLZM-2016-0002, Village at Leesburg Land Bays D and
E, be forwarded to the Town Council with a recommendation of approval on the basis that the
Approval Criteria of Zoning Ordinance Sections 3.3.15 have been satisfied and that the proposal
would serve the public necessity, convenience, general welfare and good zoning practice. With
the following conditions:
1. The conditions in the staff report dated August 4, 2016, be incorporated.
2. The provision for a caretaker residence be removed.
3. The architecture of the building be consistent with Options 1 or 2, presented at the
Planning Commission public hearing on August 4, 2016 and be compatible with the
architecture of the Village at Leesburg.
Commissioner Barnes seconded the motion.
Susan Berry -Hill clarified that the conditions of approval referenced in the motion apply to the
special exception application and not the proffer amendment.
It was determined that the Chair could restate the motion removing conditions 1, 2, and 3.
Commissioner Robinson restated the motion to remove conditions 1, 2, and 3 as they apply to the
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special exception application TLSE-2016-0002.
Vote 5-0-2 (Kidder and Welsh Chamblin absent)
Commissioner Babbin made the following motion:
I move that Special Exception TLSE-2016-0002, Johnson Mini -Warehouse, be forwarded to the
Town Council with a recommendation of approval on the basis that the Approval Criteria of
Zoning Ordinance Sections 3.4.12 have been satisfied and that the proposal would serve the
public necessity, convenience, general welfare and good zoning practice subject to the following
conditions:
1. The conditions in the staff report dated August 4, 2016, be incorporated.
2. The provision for a caretaker residence be removed.
3. The architecture of the building be consistent with Options 1 or 2, presented at the
Planning Commission public hearing on August 4, 2016 and be compatible with the
architecture of the Village at Leesburg.
Commissioner Barnes seconded the motion.
Vote 5-0-2 (Kidder and Welsh Chamblin absent)
SUBDIVISION AND LAND DEVELOPMENT
None
ZONING
TLTA-2016-0001 and TLOA-2016-0001, Telecommunications Town Plan Amendment and Text
Amendment — Susan Berry -Hill, Director, Department of Planning and Zoning and Chris Murphy,
Zoning Administrator
Chris Murphy reviewed previous Commission discussion which focused primarily on the treatment of
ground -mounted equipment associated with DAS, Small Cell and Power Mount type facilities being
proposed. The Commission expressed concern with the placement, size and appearance of the ground -
mounted equipment associated with such facilities. As a result of the Commission's discussion, a number
of additional use standards have been included in the August 4, 2016 draft of the ordinance amendment
under Section 9.3 use Standards, 9.3.261 Distributed Antenna Systems (DAS) and/or Small Cells.
Changes include the following:
• Specification to limit the use to non-residential buildings, existing or replacement of
existing utility poles or replacement of existing light standards.
• Camouflage of all ground -mounted or pole -mounted equipment appurtenant to such
facilities
• Additional Use Standards for ground -mounted equipment which prohibit the use on
residential property or the right-of-way in front of a residential use, and inside of the
Route 7/15 Bypass area except for when associated with power -mount facilities on
existing electric transmission poles.
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August 4, 2016 Minutes
H-1 and H-2 review required. No ground -mounted equipment shall be permitted
anywhere in the H-1 Overlay District
Mr. Murphy presented examples of ground -mounted equipment cabinets, pole -mounted
equipment cabinets and stealth applications which had been requested by the Commission at
their last meeting on July 21, 2016. He concluded his presentation noting that representatives
from Verizon were in attendance to address the Commission's questions and concerns.
Commissioner Babbin asked what circumstances would require ground -mounted equipment as
opposed to pole -mounted equipment. Mr. Murphy responded that it was based on the technical
requirements and engineering aspects of a particular application as well as whether a particular
pole can accommodate the weight and wind load of a pole mounted application. Commissioner
Babbin asked if the lamp post example was considered to be a ground -mounted facility. Mr.
Murphy explained that it would be considered to be a pole -mounted facility since the equipment
is in the base of the pole and the base is part of the pole. Commissioner Babbin opined that this
type of stealth facility would be desirable in the H-1 and asked that this be clarified in the
ordinance. Mr. Murphy noted that he could make the distinction that the individual ground -
mounted facility is separate from the pole.
Commissioner Harper referenced an example of pole -mounted equipment which had three boxes
mounted on the pole and asked about the size and height of the boxes. Frank Stearns, Verizon,
clarified that those were actually radio heads; not equipment. The DAS system uses radio heads;
it doesn't need equipment at the base; it goes to a hub. He noted that he was not familiar with
that system, however he estimated the size to be about six cubic feet and the height to be about
8' to 10'. The height is dictated by the utility company. Commissioner Harper noted that
camouflage techniques had been discussed at the previous meeting and asked if he had brought
examples with him. Mr. Stearns answered that the lamp post was such an example. He
explained that there were other ways to disguise them such as boxes and barrels.
Commissioner Babbin asked if prohibiting ground -mounted facilities in the H-1 would have a
negative impact on residents in the
H-1 in terms of signal quality. Mr. Stearn responded that it would. Not allowing ground
mounted equipment in the H-1 would restrict placement as traffic light poles are not strong
enough and the buildings are not high enough to mount equipment on.
He explained that 70 cubic feet was chosen to encourage co -location and could handle up to
three providers. Verizon would be agreeable to reduce the size to 20 cubic feet in the H-1
provided that it could be a ground -mounted facility. The facility would need to be camouflaged
and would require BAR approval. Verizon has done this successfully in Williamsburg and other
historic places. The lamp post presented earlier is at Virginia Tech. He noted that prohibiting
ground -mounted facilities in the H-1 does not allow the carriers to design something workable.
Commissioner Babbin asked if the barrels used in the H-1 as planters in the summer could be
used as camouflage. Mr. Stearn replied that it could be possible and would like the opportunity
to try. Commissioner Babbin opined that there was a need for greater flexibility and was in
support of allowing appropriate ground -mounted systems in the H-1.
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August 4, 2016 Minutes
Commissioner Harper expressed concerns regarding ground -mount equipment in the H-1 due to
the narrow sidewalks and limited right-of-way in front of the residences and suggested co -
locating in church steeples.
Commissioner Burk noted that he went to the Economic Development Commission meeting last
night and there was discussion about increasing the vitality of the downtown area and a lot of it
is focused on technology and relies on connectivity such as Wi-Fi Hot Spots. There is a need for
robust systems to make this work. He would like to make this ordinance as future proof as
possible and find ways to not preclude ground -mount systems in the H-1. This would allow
applicants to try and create systems that are camouflaged and appropriate.
Commissioner Barnes noted that there had been a lot of discussion at the last meeting and the
decision was made to prohibit ground -mounted equipment in the H-1. He expressed concern that
two members of the Commission who were at the last meeting were not in attendance tonight
and felt that they should be able to express their opinions and concerns prior to any action being
taken.
Commissioner Harper agreed that if a final decision is going to be made that changes the
previous consensus then all Commission members should be present.
Commissioner Babbin asked what the critical action date. Ms. Berry -Hill responded that if was
September 9th. Commission Babbin was also in favor of deferring formal action until the next
Planning Commission meeting. She asked staff to come to the next meeting and provide
language that does not prohibit ground -mounted equipment, but will ensure that it is appropriate.
Mr. Stearns was not opposed to deferring action to the next meeting and offered to provide more
examples of stealth systems. He also asked the Planning Commission to consider the placement
of these system on multi -family units.
Commissioner Babbin asked about the review process. Mr. Murphy responded that he will put
together specific use standards for ground -mounted systems in the H-1. All use standards would
need to be met to allow the systems by -right. The facility would also need to meet the specific
use standards. Failure to meet the standards would require a special exception. Commissioner
Babbin asked if multi -family residential usage could be done with use standards as well. Mr.
Murphy answered that it could; and would also require a special exception if the use standards
are not met.
Commissioner Robinson asked about pole ownership and the co -location process. Mr. Murphy
explained that the poles are owned by various utility companies and the telecommunications
providers approach the utility companies for permission to co -locate on the pole. The Town is
not involved in this process.
Commissioner Robinson asked staff to provide two or three examples for use within the H-1 to
allow a by -right use. Mr. Murphy stated that while he understood the value of a by -right use, he
cautioned that they would have to be very careful in the H-1. The systems would have to look
like an appurtenance and be compatible with its surroundings which can vary depending on its
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August 4, 2016 Minutes
location within the H-1. We have administrative review by the Preservation Planner and could
come up with use standards that would allow administrative approval. If the Preservation
Planner is uncomfortable reviewing an application administratively, it would go to the BAR for
review.
Commissioner Robinson asked that staff look at stealth applications such as cupolas and steeples
and consider placement on the courthouse and other places where they would not be seen. Mr.
Murphy noted that he had found an example of a stealth technique on a flat roof type building
where the cabinet looks like a penthouse on top of the building and would bring it to the next
meeting.
Commissioner Robinson was in favor of reducing the size of the cabinet and asked about the
impact the smaller size would have on the carriers. Mr. Murphy answered that 20 cubic feet
would only serve one carrier.
Commissioner Robinson expressed concern regarding ground -mounted systems on the sides of
residential uses and asked that language be added to address the side of the residence.
Commissioner Robinson summarized that staff will come back to their next meeting on
September lst to address prohibition concerns; camouflaging and stealth; H-1, H-2 and bypass
concerns; cabinet size reduction; and examples will be provided.
COMPREHENSIVE PLANNING
None
COUNCIL AND REPRESENTATIVES REPORT
Commissioner Burk attended the Economic Development Commission meeting on August 3rd
and noted that it was a very productive meeting.
STAFF AND COMMITTEE REPORTS
None
STAFF DISCUSSION
None
OLD BUSINESS
Two -over -Two continued discussion — Brian Boucher, Deputy Director, Department of
Planning and Zoning
Mr. Boucher began the discussion summarizing that staff had been working with the Planning
Commission to develop some use standards to address this unit type that could be taken to Town
Council to recommend the initiation of a text amendment to address concerns regarding design,
arrangement of parking, HVAC units, and trash collection. Additional concerns had been raised
at the July 7th meeting regarding gas hook-up, meter placement and arrangement; length of
parking space; tandem parking; and alley way width for emergency vehicle access. Staff was
asked to evaluate and develop performance standards to address these prior to their making their
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final recommendation to Town Council. Mr. Boucher addressed the additional concerns as
follows:
• Gas Hook -Up, Meter Placement and Arrangement — There are a lot of state and safety
regulations regarding the arrangement of gas hook-ups and meters. Regulation is not
typically in the Zoning Ordinance and staff recommends requiring applicants to show the
arrangement on a typical which will give an idea of how it will be laid out.
Commissioner Harper asked about the placement of HVAC units on the roof. Mr. Boucher
responded that the placement of these units is enforced by the building inspector and there are
safety regulations that need to be considered as they need to be placed outside and they need to
be accessible.
Commissioner Robinson asked if it were possible to ask Washington Gas to place in a different
location if the rear is already cluttered with HVAC, garbage cans, etc. Mr. Boucher answered
that we can require the developer to address space constraints.
Mr. Boucher addressed concerns expressed by members of the Commission regarding snow
removal. He explained that snow removal was the HOA's responsibility as the streets in these
communities were private and as such are maintained by the community. It is the developer's
responsibility to maintain the streets until the development is turned over to the HOA. There
was discussion as to whether snow removal can be addressed with the developer and Mr.
Boucher explained that this can be addressed during the application process and was not
something than could be mandated in the ordinance. Commissioner Robinson requested that
residential snow removal be addressed in their recommendation to Council.
Ms. Berry -Hill clarified that this conversation regarding the two -over -twos was to look at on lot
suggestions that staff can communicate to the applicant as they submit their plans to make the
individual lots less cluttered. Snow removal goes beyond the lot lines. The issue can be
addressed however the conversation has been about two -over -two lots, not the overall
development. Mr. Boucher was trying to address the initial question of how to make the two -
over -two lots less cluttered. After further discussion it was determined to address snow removal
during the application process.
• Parking — Mr. Boucher explained that the Commission was going to discuss parking in
general and suggested including the driveway length, tandem parking spaces and alley
widths in that discussion. The Commission agreed.
Mr. Boucher noted that on July 7t' there were recommendations by staff of potential ordinance
amendments to be initiated by Council. One dealt with trying to make sticks of townhouse units
more varied and the other was a list of factors that staff will ask for on a typical for the
development to allow staff to see how they are addressing specific issues and will be discussed
when looking at design. The gas hook-up, meters and arrangement has been added to the typical.
Snow removal will be addressed during the application process as discussed. At this point, the
Planning Commission can move forward with a recommendation to Council to initiate these
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zoning ordinance text amendments, unless they would prefer to wait until they have had their
discussion on the parking issues raised.
The Commission was in support of sending a recommendation without the parking element.
Commissioner Robinson asked that staff move forward to Council with the Planning
Commission's recommendation and to indicate that concerns regarding parking will be following
as well.
Commissioner Burk made the following motion:
I move that the Planning Commission recommend to the Town Council that the Zoning
Ordinance be amended to add a typical lot layout detail for townhouse and/or stacked townhouse
(two -over -two) units as presented in the staff report dated August 4, 2016.
Commissioner Barnes seconded the motion.
Commissioner Robinson called for discussion.
Commissioner Babbin noted that there has been a lot of discussion on this issue. She did not
have a problem asking a developer for information. However, she believes that our zoning
ordinance is too complicated and has far too much regulation. It was her opinion that this
regulation was not appropriate nor necessary to be included in the ordinance. She will not be
supporting this motion in principle.
Vote: 3-2-2 (Aye — Barnes, Burk and Robinson; Nay- Babbin and Harper; Absent Kidder and
Welsh Chamblin)
SB549Proffer Legislation Interim Policy — Barbara Notar, Town Attorney
Barbara Notar, Town Attorney, gave an update on the new proffer legislation and the Town's
interim policy. This was the same presentation that was given to Town Council by Brian
Boucher, Susan Berry -Hill and herself last month. The presentation involved an overview of
the new proffer legislation, what other jurisdictions are doing and recommendations from staff
regarding the interim policy and future plans. Staff made the following recommendations to
process residential rezoning applications after July 1, 2016:
• Initiate amendments to the Zoning Ordinance
• Initiate repeal of proffer guidelines and applicant initiated Town Plan amendments
• Initiate amendments to the Town Plan
• Initiate residential rezoning fee increase
• Adopt an interim policy, for the period between an Initiating Resolution and Ordinance
amendments, to prohibit the submission of proffers for residential rezonings
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These recommendations are based upon feedback from land use attorneys who represent
homebuilders in the Town as well as local government attorneys.
The current proffer authority Va. Code 15.2-2303 controls proffers in the Town. Under this
current section 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 proffer law Va. Code 15.2-2303.4 (formerly known as SB549)
states that onsite proffers must be specifically attributable to the impact created by the new
residential development. Offsite and cash proffers must meet the following:
• Must be specifically attributable and address an impact to a new or existing offsite facility
such that the new residential development creates the need or an identifiable portion of a
need for one or more public facility improvements in excess of existing public facility
capacity;
• The new residential development receives a "direct and material benefit" from the
proffer;
• No public facility improvement may include operating expenses of an existing such
facility, such as ordinary maintenance or repair, or any capital improvement to an
existing public facility that does not expand its capacity;
• A locality may base its assessment of public facility capacity on the projected impacts
specifically attributable to the new residential development.
The new statute prohibits any 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. It also prohibits a locality from denying
any rezoning application or proffer condition amendment for a new residential development or
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.
Commissioner Robinson asked if this legislation could mandate that the last developer in
would be responsible for building an entire school. Ms. Notar answered that it could and that
might be one of the unintended consequences of this legislation. It is her opinion that the
attorneys, developers, etc. understand that there will be some unintended consequences and
things will need to be worked out either by the legislature or the courts. She has spoken with
Delegate Minchew and he does not think that this bill will be taken up in the 2017 General
Assembly.
Commissioner Burk wished to clarify that staff would need to determine up front if a proffer is
reasonable even if it is voluntarily offered. The onus is on the Town to reject an unreasonable
proffer. Ms. Notar responded that he was correct but staff thought they had determined a way
to deal with this.
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Commissioner Babbin asked for more detail on the necessity to prohibit applicant -initiated
Town Plan amendments and how it relates to the new proffer statute. Ms. Notar responded
that currently we allow applicant–initiated Town Plan amendments, the County does not.
Applicant -initiated plan amendments are adjustments to the Town Plan which is the
development vision for the Town. Currently, our Comprehensive Plan takes into account
proffers. It is not a thorough as it should be, nor as detailed, and if we can't accept proffers
most rezoning decisions will be based upon the Comprehensive Plan. The Council agreed
with Staff that applicants should not be allowed to adjust the plan unless we are in support of
it. Commissioner Babbin questioned the reasoning since any applicant initiated plan
amendment would need to go through the Planning and Commission and Town Council.
Ms. Berry -Hill further clarified that every applicant initiated plan amendment that staff has
seen recently has been to convert non-residential property to residential. Staff is not in support
of accepting this type of application due to the implications of this new proffer statute. She
was unsure as to how an applicant wishing to initiate a Town Plan amendment to convert
residential to non-residential would be considered.
Ms. Notar reminded the Commission that this is the interim policy in place to allow staff to
devise a plan to respond to the impacts of the new legislation. It is possible that staff may
advise Council to repeal or change this particular element of the policy.
Commissioner Babbin asked if any initiative to change the policy would come before the
Planning Commission. Ms. Notar answered that it would.
Ms. Notar discussed the new statute legal actions and burdens are as follows:
• A presumption now exists that failure or refusal to submit an unreasonable proffer is the
controlling basis for a rezoning denial if the applicant proves that a locality suggested,
requested or required the unreasonable proffer The applicant's burden of proof is a low
one—by a "preponderance of the evidence".
• Town's evidence must be "clear and convincing" which is the highest standard in civil
cases in order to rebut the presumption. This may negatively impact the traditional
"fairly debatable" standard which has been historically favorable to the Town.
• 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, applicant may be entitled to attorneys' fees, costs and a court order to the
Town Council to approve the application, as requested, without any unreasonable proffer
Ms. Notar briefly discussed action other jurisdictions are taking. Loudoun County is not
accepting cash proffers for residential development. Fairfax County does not have an interim
policy and is still accepting proffers. However, these localities differ from the Town. There are
exceptions in this new statute that pertain to Loudoun County and Fairfax County who both have
small area comprehensive plans. Small area comprehensive plans pertain to areas around
existing or planned metro stations which both Loudoun County and Fairfax County have.
Another exception is an approved small area comprehensive plan in which the delineated area is
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August 4, 2016 Minutes
designated as a revitalization area, encompasses mass transit, includes mixed use development
and allows a density of at least 3.0 Floor Area Ratio (FAR) in a portion thereof. This exception
may apply to the Crescent Design District and staff is looking into this.
Ms. Notar discussed the following staff recommendations for a new rezoning application
process:
• All questions and comments about proffers, whether made by Town staff members of the
Planning Commission or Town Council, or the applicant, must be submitted in writing to
the Project Manager who will evaluate and answer questions after training and consultation
with legal
• Proffers submitted by a residential rezoning applicant must include sworn
certifications that the proffers are voluntary and no agent of the Town has
suggested or requested an unreasonable proffer under the new law;
• All "proffer packages" must include "impact studies" that list any impacts and address
the mitigation of impacts as a result of the rezonings (both onsite and offsite) and
proffer packages must be submitted with a sworn certification that proffer packages
comply with the new law;
• Increased residential rezoning application fees to pay for increased cost of
evaluation of "impact studies" (or all rezoning fees?);
• Hiring of consultant to review "impact studies" and advise Town.
• Applicant -initiated Town Plan Amendments should no longer be accepted and proffer
guidelines repealed;
• Zoning Ordinance Amendments to reflect new regulations governing submittal
requirements, proffer evaluations, behavior by all agents of the Town;
• Initiate Town Plan Amendments;
Commissioner Robinson asked how staff would handle a developer who submits an application
and voluntarily proffers what he remembers to be in Appendix B for impact mitigation. Ms.
Notar answered that either staff or a consultant for the Town would evaluate the impact study.
Mr. Boucher explained that staff needs to make sure it is accurate and be able to prove that the
amount proffered is almost exactly the right amount needed to mitigate the impacts of that
development. Staff will be asking developers to submit a lot more information with their
applications.
Commissioner Babbin noted that she agreed with the general approach, but felt that they were
taking a good approach and making it useless. She has litigated several proffers in Virginia and
noted that it all comes down to evidence. She agreed the first step requiring written
communication to the Project Manager was absolutely necessary, however they needed to take
one step further. The Town needs to pass an ordinance that allows only the assigned Project
Manager to discuss the application. This is a necessary step to ensure that there is proof that no
one else is authorized to discuss the application. She also did not advise using the word
"voluntary" as it is no longer an issue. She advised changing the word "voluntary" to
"reasonable". She also advised against the Town utilizing a consultant because you lose the
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August 4, 2016 Minutes
whole evidentiary value. In a case where the Town is going into court the only evidence should
be the applicant's study.
Mr. Boucher responded that if the Town is approving rezonings based on the applicant's
consultant alone, with none of our own analysis, we are still in danger of having no proof of our
own that we analyzed the impact to determine if it was reasonable under the circumstances. He
noted, that while Commissioner Babbin might not agree, he believes this is the reason the
localities are proceeding this way. Localities don't want to be completely at the mercy of
applicants results.
Commissioner Babbin noted her disagreement.
Commissioner Barnes was in agreement with Commissioner Babbin. The Town's consultant
could be wrong. Would the consultant be bonded and required to pay in this case? Mr. Boucher
responded that the only reason he disagreed with Commissioner Babbin is in the case where
someone challenges what is reasonable and the Town didn't do any of their own studies. This is
something that will be discussed in detail as the permanent policy is being developed.
Commissioner Babbin suggested that staff look very strongly at the principle of equitable
estople. Not only do you have this evidence that comes in from the applicant; there is a principle
in law that says if you signed the certifications and put in these studies you are prevented from
going into court and challenging your own evidence. Mr. Boucher noted that equitable estople is
partof this. One of the things that has been discussed is that jurisdictions will most likely need
their own expertise. In the interim we are not getting into all this. This will be about six months
down the line. Ms. Notar noted that the plan is subject to change and the process moves forward.
Lastly, Ms. Notar reviewed the interim policy which effective, July 1, 2016 a policy will be
adopted that no proffers will be accepted with residential rezoning applications until ordinances
are passed amending zoning ordinance, repealing proffer guidelines, and beginning work on the
Town Plan. No staff membe4 Planning Commission member or Town Council member should
discuss any residential rezoning application. Town staff Council members and Planning
Commission members may meet with applicants to hear about projects, but no discussion shall
ensue. Town Plan amendments can occur during this Interim Policy Period.
Commissioner Babbin asked if there were any projects coming forward in the next six months
that are impacted by this legislation. Mr. Boucher explained that no applications that would be
subject to this legislation have been submitted and none are anticipated. This is due, in part to
the development community not being particularly happy with this legislation either which has
caused a voluntary slow sown in residential rezoning. While we are not anticipating any
applications, we will be talking about all these things so that the Town will be prepared when
applications are submitted. It is unlikely that this legislation will be changed in the next General
Assembly. Commissioner Babbin asked specifically about Leegate and Mr. Boucher explained
that the Leegate application would be grandfathered as it was submitted prior to this legislation
being in effect. Ms. Notar clarified that there will be several residential rezoning applications
coming before the Commission, however they were submitted prior to July 1 st and our not
subjected to the new legislation.
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Ms. Notar noted that there will be training in the future, and periodic discussions regarding the
zoning ordinance amendments, the comprehensive plan amendments and process moving
forward after the interim policy period. The zoning ordinance and town plan amendments have
been initiated and staff is working on these amendments which will be coming before the
Commission.
NEW BUSINESS
None
ADJOURNMENT
The Meeting was adjourned at 9:47 PM.
Ap- roved by:
f�
L/ Karen Cicalese, Commission Clerk
A - J
Gigi`b , son, Vice -Chairman
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