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The Town of Leesburg in Virginia
Leesburg Planning Commission
Meeting Minutes
May 18, 2017
The Leesburg Planning Commission met on Thursday, May 18, 2017 in the Town Council
Chamber, 25 West Market Street, Leesburg, VA 20176. Staff members present included Susan
Berry -Hill, Scott Parker, Shelby Caputo, and Karen Cicalese.
CALL TO ORDER
The meeting was called to order at 7:00 pm by Chairman Welsh Chamblin
PLEDGE OF ALLEGIANCE AND ROLL CALL
Members Present: Chairman Welsh Chamblin, Commissioners Babbin, Barnes, Kidder,
Lanham, Robinson, and Walker
ADOPTION OF AGENDA
Motion: Commissioner Babbin
Second: Commissioner Kidder
Vote: 7-0
APPROVAL OF MINUTES
May 4, 2017
Motion: Commissioner Babbin
Second: Commissioner Kidder
Vote: 6-0-1 (Welsh Chamblin abstained as she was not present at that meeting)
DISCLOSURE OF MEETINGS
Commissioner Babbin disclosed a number of discussions regarding the Economic Development
Steering Committee, however, no discussion was held on anything coming before the Planning
Commission. She asked if the Commission agreed to only require her to disclose discussions
and/or meetings when the topic is related to Planning Commission matters. All Commissioner
were in agreement.
CHAIRMAN'S STATEMENT
Chairman Welsh Chamblin thanked Commissioner Robinson for chairing the May 4t" meeting in
her absence. She noted that it was a very successful meeting and that she was looking forward to
some of the outcomes from that meeting.
PETITIONERS
None
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PUBLIC BLARING
TLTA-2017-0001 Proffer Statute Town Plan Amendment and TLZO-2017-0001 Proffer
Statute Zoning Ordinance Amendment — Scott Parker, Assistant Town Manager
Chairman Welsh Chamblin opened both public hearings at 7.03 pm.
Mr. Parker explained that this is a Town Plan Amendment and a Zoning Ordinance Amendment
that addresses an option that Town Council directed staff to pursue to address the new State
proffer legislation. The proposed amendments represent a collaborative effort between the
Department of Planning and Zoning and the Town Attorney's Office to respond to the proffer
statute and how best to protect the Town.
Mr. Parker gave a brief history noting that on March 7, 2016, the General Assembly of Virginia
amended Chapter 322 of the Code of Virginia to add section 15.2-2303-4, related to conditional
zoning. This was intended to protect developers against governments who abuse the rezoning
process to get more proffers than are justified by a residential rezoning. There have been major
concerns with this legislation as it inhibits a collaborative approach, could shift the costs of
necessary improvements, reverses the longstanding presumptions of "reasonableness, and the
language in the statute referring to "specifically attributable".
Mr. Parker noted that jurisdictions across the state are reacting differently to this new legislation
and Town staff has met regularly to discuss options that are specific to Leesburg such as
development patterns and percentage of build -out. Staff analysis determined a dramatic impact
on the review and acceptance of proffers for residential rezonings or mixed use rezonings that
contain a residential component. Mr. Parker explained that the legislation provides for an
exception of "small area plans" and Loudoun County is utilizing this approach for their
development approach to this new legislation. He further explained that Leesburg's growth is
anticipated to be in areas that can be exempted from this legislation via the "small area plan"
concept.
The Town is currently operating under the Interim Policy as directed by Council which mandates
that the Town will not accept any type of proffers (cash or contributions) for any rezoning
application that contains a residential component. Additionally the Town will no longer accept
applicant -initiated Town Plan amendments. This Interim Policy is to remain in effect until such
time as a permanent policy is established and amendments are made to the Zoning Ordinance,
Town Plan, and other Town documents related to proffers. Lastly, the Town has established a
limited cornmunication protocol between staff, officials, and developers to avoid claims of
unreasonable proffers requests. This has not been a problem as there are no applications in the
pipeline or any pending applications at this time.
Mr. Parker discussed allowable exemptions from legislation where the Town could still accept,
discuss, and request proffers. The Small Area Comprehensive Plans are exempt from the new
law so long as these areas contain certain existing or proposed public amenities. These include
areas designated as a revitalization area, areas that encompass mass transit, areas that include
mixed use development, and areas that allow a density of at least 3.0 floor area ratio (FAR) in a
portion thereof. There are areas within the Town that can be classified as "small area plans" and
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May 18, 2017 Minutes
include the Crescent Design District and the currently underway East Market Street Small Area
Plan. The Forrestier tract lies within the East Market Street area and this property could be
developed with a residential component.
Mr. Parker explained that staff had presented options to Town Council and Council chose to
allow exemptions in designated small area plans, to not accept proffers for any areas outside of
the designated small area plans, to make minor changes to the Town Plan and Zoning Ordinance,
and to keep the interim approach for communication protocol. This will be implemented as
follows:
• Amend the Zoning Ordinance and the Town Plan to succinctly and specifically designate
the Crescent Design District as a small area plan.
• Amend the Town Plan to designate the East Market Street area as a small plan area.
• Amend the Town Plan language concerning applicability of proffers.
• Amend Article 3 of the Zoning Ordinance referencing proffers.
Chairman Welsh Chamblin called for clarifying questions from the Commission members.
Commissioner Babbin asked if the East Market Street Small Area Plan qualified as a
revitalization. Mr. Parker responded that it did as there are areas within this area that are ripe for
redevelopment, such as the Cardinal Park areas.
Commissioner Babbin asked if it was the opinion of Legal Counsel that as long as there is some
land that is to be revitalized, within that small area plan, the whole area qualifies for exemption.
Shelby Caputo, Deputy Town Attorney, replied that it was.
Commissioner Babbin noted that she had seen something in the staff report regarding the need to
act on these amendments quickly and asked why there was this sense of urgency as there are no
applications in the pipeline. Mr. Parker explained that while there is nothing pending currently,
staff is working on the East Market Street Small Area Plan and the Peterson Companies have
alerted staff that development is forth coming. There is a relative sense of urgency to address the
proffer legislation in the Town Plan and Zoning Ordinance so that staff will be prepared when an
application is submitted. Under the current Interim Process, if an application for a residential
rezoning were to be submitted, the Town would not accept proffers, the developer would have to
mitigate their impacts onsite and meet the Town Plan requirements which would be used as a
criteria for an evaluation and/or a recommendation of approval or denial.
Commissioner Babbin asked if staff has considered or studied whether the creation of these small
area plans would put the Town at a competitive disadvantage for revitalization. Mr. Parker
responded that staff did not believe that it would put the Town at a competitive disadvantage as it
could still negotiate proffers in these small plan areas. Not being able to discuss proffers could
hinder development within the Town.
Commissioner Babbin noted that the Interim Policy included a potential fee increase and asked if
that was included in the permanent approach. Mr. Parker explained that as part of the Interim
Process, a fee increase was included however, no fees were charged as there weren't any
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applications. A fee increase is not included in the proposed policy and would have to be
approved by Council. Once this new policy is approved by Council, the Interim Policy will no
longer be in effect with the exception of the communication protocol.
Commissioner Lanham asked what the minimum size was for a small area plan. Mr. Parker
responded that staff does not believe that the State statute designates a minimum or maximum
area to be considered for a small area plan. It does have to be a revitalization area and the
criteria for mass transit and FAR of 3.0 must be met.
Commissioner Robinson asked if the reason that the Rogers property, the O'Connor property,
and the area within the JMLA near Battlefield were not considered because there is no mass
transit, no 3.0 FAR and no revitalization in these areas. Mr. Parker responded that was the
reason the O'Connor property was not considered. The Rogers property is already zoned R-4
and there has not been any interest expressed in rezoning that property. Anything outside the
Town was not considered as it falls within the County's jurisdiction.
Chairman Welsh Chamblin called for additional clarifying questions. Seeing none, she close the
public hearings at 7:27 pm and solicited Commission member discussion and comments.
Commissioner Robinson asked which development would be responsible for mitigating the
impact on services. Mr. Parker responded that it would be the development proposed in the
rezoning that creates the need for mitigation.
Susan Berry -Hill, Director, Department of Planning and Zoning, further clarified that a
developer is only responsible for mitigating the impact they are providing.
Ms. Caputo stated that the magic words in the statute are "significantly attributable". A separate
analysis for each developer must be done to determine what is significantly attributable to that
developer and the impact on schools, services, etc.
Mr. Parker clarified that this could only occur outside of the Crescent Design District and the
East Market Street Small Area Plan.
Commissioner Robinson proposed language changes to the proposed Zoning Ordinance
amendments. She also asked if the small area plans will be listed in the Town Plan, Mr. Parker
noted his agreement with the language changes and commented that the small area plans are not
listed in the Town Plan at this point.
Commissioner Lanham asked if staff had an idea of what type of analysis a developer is expected
to provide when requesting a rezoning and if there were guidelines published. Mr. Parker
explained that the applicant would have to present analysis on how impacts are mitigated and
how the development would comply with the Town Plan. There are not guidelines currently
available, and staff has not been directed to compile guidelines at this juncture.
Commissioner Babbin stated that she was not ready to vote this evening. She referenced an
article on proffers written by Mike Banzhaf and she encouraged the Commission members to
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read it. She explained that this proffer legislation was initiated by a Supreme Court decision in
2015 and is still subject to that decision regardless of what the Town does with small area plans.
She asked if Legal Council had given guidance as to what can and can't be done in small area
plans. Ms. Caputo responded that this has not been discussed in detail however, staff is very
aware of the Kuntz decision. She did not think that anything the Town had done has violated
this decision.
Commissioner Babbin asked if the payment -in -lieu program applied to both residential and
commercial. Ms. Berry -Hill explained that it applies to commercial in the B-1 District and some
residential within a specified area. Commissioner Babbin cautioned that this was something the
Town needed to consider because the fee is subject to the same considerations as proffers.
Commissioner Babbin suggested language changes to the proposed Zoning Ordinance
amendments.
Chairman Welsh Chamblin summarized the proposed changes as follows:
Commissioner Robinson proposed switching the order of A and B Colder
TOL Zoning Ordinance Section 3.3.16
Commissioner Babbin proposed removing the example under TOL Zoning Ordinance Section
3.3.3.E.
Commissioner Babbin proposed removing language regarding the pre -application process under
TOL Zoning Ordinance Section 3.3.4.A
Mr. Parker noted that similar language referencing pre -application conferences is also in TOL
Zoning Ordinance Section 3.1.5 and recommended it be removed as well.
Chairman Welsh Chamblin asked for consensus amongst the Planning Commission regarding the
changes and all Commissioners were in support of the proposed language changes.
Chairman Welsh Chamblin commented that she was glad to see this moving forward as it was an
important step in keeping the Town compliant with State legislation.
Chairman Welsh Chamblin called for a motion:
Commissioner Robinson made the following motion:
I move that the Zoning Ordinance Amendment TLOA-2017-0001, amendments to Article 3 and
7 of the Zoning Ordinance for the purpose of addressing Virginia Code Section 15.2-2303.4
which is related to proffers for developments with a residential component, be forwarded to the
Town Council with a recommendation of approval for reasons stated in the staff report dated
May 18, 2017, and on the basis that it would serve the public necessity, convenience, general
welfare and good zoning practice.
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Commissioner Barnes seconded the motion.
Chairman Welsh Chamblin called for discussion on the motion.
Commissioner Babbin stated that she would be abstaining from voting as she is not comfortable
with the proposed amendments, and was concerned that this could put the Town at a competitive
disadvantage with neighboring jurisdictions. She would have liked to have more time to study
this, particularly with the new Economic Development Steering Committee.
Chairman Welsh Chamblin called for additional discussion on the motion. Seeing none, she
called for the vote. The motion was approved by a vote of 6-0-1 (Babbin abstained).
Commissioner Robinson made the following motion:
I move that `rLTA-2017-0001, amendments to the Town Plan for the purpose of addressing
Virginia Code Section 15.2-2303.4 which is related to proffers for developments with a
residential component, be forwarded to the Town Council with a recommendation of approval
for reasons stated in the staff report dated May 18, 2017, and on the basis that it would serve the
public necessity, convenience, general welfare and good zoning practice.
Commissioner Kidder seconded the motion.
Chairman Welsh Chamblin called for discussion on the motion.
Commissioner Babbin noted that she would be abstaining for the reasons previously stated.
Chairman Welsh Chamblin called for additional discussion. Seeing none, she called for the vote.
The motion was approved by a vote of 6-0-1 (Babbin abstained).
SUBDIVISION AND LAND DEVELOPMENT
None
ZONING
None
COMPREHENSIVE PLANNING
None
SRTC REPORT
None
STAFF AND COMMITTEE REPORTS
None
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OLD BUSINESS
Planned Bikeway Networiz Discussion (continued from May 01)
Ms. Berry -Hill noted that the Commission had brought up to concerns at the last meeting; the
cost of the signage and the bike trail on Plaza Street and the proposed sidewalk on the west side
of Plaza Street, south of Edwards Ferry Road to the police station. Ms. Berry -Hill informed the
Commission that the signage cost was approximately $2,300. With regard to the Plaza Street
sidewalk, the concern was the potential tree removal that would be required. Ms. Berry -Hill
noted that she had spoken to the Department of Public Works and Capital Projects and this
project is in the Potential Futures list in the CIP. The projects in this list, have no cost and no
work has been done however, it has been identified as something we may need to look at in the
future. She commented that she understood Commissioner Kidder's concerns and her desire to
recommend that the Town Manager and the Department of Public Works and Capital Projects
consider options that would not require the removal of trees which would impact the
neighborhood and the tree canopy. Ms. Berry -Hill noted that she had prepared a resolution for
the Commission to review and consider if they would like to make a recommendation on this
issue.
Chairman Welsh Chamblin suggested that the Commission members review the resolution and
discuss at a future meeting. The Commission members were in agreement.
Discussion of a proposal to hold staff briefings on upcoming land development applications
or amendments prior to the public hearing
Commissioner Robinson explained that she would like to have work sessions where staff could
present applications that are going to come before the Commission in a public hearings, i.e.
amendments, rezonings, etc. She felt this would enable the Commission to have a better
understanding of what is being proposed and to be better prepared at the public hearing.
Commission members expressed concerns regarding procedures for the work sessions, delays in
the land development application process, and flexibility in regards to applications requiring a
work session.
After further discussion, Commissioner Robinson withdrew the proposal based on the discussion
and concerns expressed.
Commissioner Kidder noted her support of the proposed work session briefings.
Commissioner Lanham commented that this was done in other jurisdictions and that he found it
to be very helpful.
After additional discussion, it was determined to schedule a discussion on work session briefings
for a future meeting.
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NEW BUSINESS
None
ADJOURNMENT
The Meeting was adjourned at 8:28 pm
Approved by:
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6;'ka r n Cicalese, Commission Clerk
Gigi R i n, Vice Chair