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HomeMy Public PortalAbout1998_06_16SPECIAL MEETING MINUTES OF JUNE 16, 1998 A special meeting of the Leesburg Town Council was held on Tuesday, June 16, 1998 at 6:00 p.m., in the Council Chambers, 25 West Market Street, Leesburg, Virginia 20175, Municipal Government Center. The meeting was called to order by Mayor James E. Clem. COUNCILMEMBERS PRESENT J. Frank Buttery, Jr. Jewell M. Emswiller Joseph R. Trocino Kristen C. Umstattd B. J. Webb William F. Webb, Jr. Mayor James E. Clem STAFF MEMBERS PRESENT Town Manager Steven C. Brown Deputy Town Manager Gary A. Huff Director of Engineering and Public Works Thomas A. Mason Director of Planning, Zoning and Development Michael Tompkins Chief of Plan Review Paul Gauthier Zoning Administration Brian Boucher Planner Marilee Seigfried Deputy Town Attorney Deborah Welsh Clerk of Council Barbara Markland Mayor Clem called the meeting to order, stating the Council will consider the Appeal of the Zoning Administrator's issuance of a proffer interpretation for #ZM-147 Potomac Station and Rezoning Application #ZM-154 Potomac Station Retail L.L.C., concept plan and proffer amendment. AGENDA ITEM 1. ADMINISTRATOR'S POTOMAC STATION TO CONDUCT THE HEARING ON THE APPEAL OF THE ZONING ISSUANCE OF A PROFFER INTERPRETATION FOR #ZM-147 Mr. Boucher provided the staff report stating the basis of the appeal is, the proffer interpretation held that an office component is required as part of the non-residential portion of the Potomac Station mixed use center. The appellant appeals to the Council contending that the proffers allowed a mixed use center to be developed entirely as a retail center without an office component. The subject property was rezoned to planned residential community with proffers under ZM-134, later amended under #ZM-147 and subsequently during the review of #ZM-154, which is a separate application to amend the proffers. The following question was posed to me in my capacity as Zoning Administrator. Do the proffers and concept plan for #ZM-147 Potomac Station permit the entire mixed use center portion of the site to be developed as retail and residential uses without an office use component? On January 21, 1998, I issued an opinion which held that a substantial office component is required in the Potomac Station mixed use center. This conclusion is based on the requirements of the Planned Development Community Regulations in the Zoning Ordinance and the intent of the proffers themselves as indicated by the proffer language and representations made by the applicant during the rezoning process. The relevant proffer language indicates that a substantial office component is required because it explicitly incorporates the zoning ordinance section which defines the uses required in a mixed use center. Proffer number one states, "up to 466,286 SF of any of the uses listed in Section 6A-16(2)(c) of the town zoning ordinance may be developed on the mixed use center portion of the property." Section 6A-16(2)(c) states in part, "mixed use centers are, a cluster of residential, commercial, employment and community facility uses designed to serve as the focus of major residential communities. Uses shall be generally in the amount indicated in the Town Plan." It is this combination of uses mandated in the Zoning Ordinance that defines a mixed use center from other types of development. To hold that office is not required would make this mixed use center indistinguishable from any other large retail center in town and would render the mixed use designation meaningless. The word "any" contained in the phrase "any of the uses" in proffer number one is not intended to exclude uses but to include them. The word "any" means, the applicant could build up to 466,286 SF of a combination of any of the uses allowed in Section 6A-16(2)(c) of the Zoning Ordinance. No use is excluded. The record supports this conclusion and throughout the 1992/93 rezoning process, the applicant represented that the mixed use center would contain employment office uses besides commercial and high density residential uses. The following 3 examples illustrate the point. -2- The site access study, submitted as part of the application and updated, specified 266,286 gross SF of office uses as the bases for traffic generation assumptions for the 1993 rezoning. The other 200,000 SF in the study, was the retail component. Proffer number 3, the transportation improvement fund in the proffers for ZM-147 states, "the applicant agrees to contribute up to $847,094 based on a projection of 266,286 gross SF of office uses and 200,000 SF of retail uses." This proffer incorporates the breakdown of uses presented by the applicant and consistently used throughout the rezoning process. A total of 16 versions of the proffers were submitted during the rezoning process between December, 1992 and June, 1994. Of these 16 versions of the proffers, 14 versions read, "no more than 466,286 SF of the uses listed in Section 6A-16(2)(c) of the town Zoning Ordinance shall be developed on the property." The fifteenth version, dated May 24, 1996, adds the word "any." There was no discussion of this change that appeared in the record and apparently the change was made unilaterally by the applicant and does not appear to have been a response to any Council or staff suggestion or requirement. The Town Plan amendment which designated Potomac Station as a mixed use development was approved August 31, 1993 without changing the language of the mixed use center policies. The mixed use center policies of the 1986 Town Plan states, "a mixed use center is a cluster of employment and commercial uses designed to serve as a community focus for surrounding neighborhoods. Mixed use centers are intended to contain clusters of employment, community facility and high density residential uses." There is a mixed use center policy 5.55 which states, "the employment area of a mixed use center should address both regional and local employment markets." Taken together these policies indicate that a mixed use center must contain office as a component of any mixed use center. There is no evidence that the Council or applicant intended to approve a mixed use center that was inconsistent with and contrary to the town plan mixed use center policies. On February 20, 1998, the applicant appealed the determination of Council within the 30 day requirement stipulated by the Virginia Code. Careful consideration has been given to appellants contentions during review of the rezoning files, however, there is no clear evidence in the files to indicate a mixed use center devoted to a single use was discussed by any party during the rezoning. Councilmember Umstattd asked, if the Council upheld the Zoning Administrator's interpretation as described, would the Council be acting inconsistently ff it approved the proffer amendment? Mr. Boucher stated, these are different items. My interpretation was written on existing proffers. The applicant has now come in, with a separate application to amend those proffers. The Council has a lot of flexibility when looking at its own Zoning Ordinance and determining what is or is not a substantial amount of office in a particular proposal. It is the Council's decision to determine ff what is being proffered now in the amendment is satisfactory to Council. Mr. Randy Minchew with Hazel & Thomas representing the appellant, addressed the Council stating, sitting in the role of a proffer appeal I believe is the only function that this Council sits in when it sits as a tribunal as compared to a legislative body. I mention that because there are not too many opportunities when this Council sits as judges construing the law the way it is and not necessarily the way it should be. I am sure there are many judges that look at laws and think, I don't like this law and should that taint the way I am going to apply it? The function of this Council, sitting as a tribunal on this proffer appeal, is not necessarily to look at anything but the law and the law in this case is the proffers which are part of the zoning map. Even though there may be some belief that the Harper Park proffers are not as good, and were not negotiated to the fullest extent, is really irrelevant from the standpoint of what we are here on tonight. The sole focus tonight, in the context of this appeal, is what is the language in the proffers that are a part of the law in this town, part of the zoning map, and what do they say. What is the legal import of these words. Mr. Boucher in construing these proffers finds that the word "any" basically was an add on - that somehow does not have any relevance. I think the only document that is impertinent from a standpoint of this appeal is the final document that is rolled into legislation and that language clearly said, that any of the uses specified in Section 6A-16 (2) (c) may be developed. The fact that it might have been brought in after 14 drafts of the proffers is irrelevant. The bottom line is the adverb "any" is in the legislation and that is the law of this case and the word "any" if you look at the Zoning Ordinance, clearly states that any of the uses allowed in the mixed use provisions of the PRC are allowed to be developed. If there was a desire to put a further stricturing on these uses, I would submit respectfully, this Town Council knows how to do it as does it's staff. The justification given by the Zoning Administrator on this stricture of uses is not in the first proffer that deals with land use. He reaches back into the section of the proffer that deals with the transportation improvement fund where there is a hypothetical, kind of like in the contract where you show an example of what a build out of 200,000 SF of retail and 266,286 SF of office would be. I would submit that, that is merely exactly what it is. It is a hypothetical in the context of the transportation improvement proffer. It does not put a maximum limit on the amount of retail of 200,000 -3- SF nor does not put a limit on the amount of office 266,286. The only two use restrictions in the proffers based upon the exact verbiage of the proffers is the minimum square footage of 400,000 SF and the maximum non-residential square footage of 466,286. The Town Plan does have some aspimtional guidance. The Town Plan is an important document and it is implemented through legislative decisions. If this Town Council wants to implement the Town Plan it knows how to do it through the negotiation of proffers and through the approval or disapproval of rezonlng applications. But once that legislation is passed it is the law. The plan is no longer the law after there has been a zoning action of this Council - wrapped up in its official resolutions this legislation and the proffers. I would also note for the Council that within the staff report there is a memorandum from my law partner, Mike Banzhaf, who handled the Harper Park rezonlng hack in 1994. Mr. Banzhaf, as the drafter of those proffers, probably knew better than anyone exactly what they said. The operative section of the Zoning Ordinance, dealing with mixed use centers, is purposely generic. It builds flexibility, policy flexibility for this Town Council to choose what it wants to have in a mixed use center. If it wants flexibility it can be imposed in the context of the PRC rezoning. If it wants to allow greater flexibility, as it was done in this case, then perhaps things are not specified. But the bottom line is, from a standpoint of this appeal - looking at the law of this case and the proffers, there is no limitation on retail and office other than in the minimum and the maximum square footage as set forth. Councilmember Umstattd addressed Mr. Minchew stating, "I know you are concerned that the Zoning Administrator's opinion/interpretation dictum went further than it might have. Your position, as I understand it, is that you should be allowed to develop the property with any of the uses that are allowed. Is that the jest of your argument? Mr. Minchew stated, "the existing proffers, what I would like to see developed is in the context of what is coming up after this application. That is what I want to see developed. But the existing proffers as they are on the table here have no such prohibition. I agree with you, there is some over dictum in the Zoning Administrator's ruling and I have trouble figuring out exactly where the ruling ends and the dictum starts." Councilmember Umstattd stated, Brian's argument is that there has to be substantial office. Is your argument that - no there doesn't because tithe Council had wanted to require that the Council would have made that part of the whole process back in 1994. Mr. Minchew stated, precisely. I think Mr. Boucher is acting in good faith, and is engaging in an administrative re-write of the proffers. He does use the word substantial in his letter. I will note that you will find that adjective no where in the proffers which is the law we are construing here tonight. Councilmember B. J. Webb referred to the beginning of Mr. Boucher's proffer interpretation, first paragraph and asked if Mr. Minchew agrees with Mr. Boucher's assumption in that first paragraph? Mr. Minchew stated, "no I do not." Councilmember Umstattd asked Mr. Boucher, what the permitted uses are under 6A-16(2)(c) when Mr. Minchew said the property could be developed with any of those uses. Mr. Boucher stated the PD district is broad in the employment uses - office and the like. It would be additional interpretations and particular uses but it is a mixture with certain broad categories - employment, commercial which is retail, community facility. These are generally broad in the ordinance but they are components in the ordinance of what a mixed use center has. That is what makes it a mixed use center. Mr. Minchew is contending that one word that was not discussed in defiance of all the discussions on the record that a word that was put in there is so pregnant with meaning that it makes everything on the record inconsequential. And that even though there was no meeting of the minds in the record, and that is what I looked for - was a meeting of the minds- I don't just look at what the applicant is intending but what does the Council intend. What is being presented and when you look at that there isn't anything on any bodies part that says we intend this word to mean, one use can be developed in a mixed use center. The intent is then, that you could have all community facility uses in a mixed use center or you could have all residential uses in a mixed use center and I don't find anything on the record that says that is what Council was intending. Councilmember Umstattd agreed, stating she does not believe there was anything on the record saying that was what was intended by Council but I also think Mr. Minchew makes a persuasive argument when he says "any" means "any." Mr. Boucher stated, there is some limitation. There was a rezoning that was presented and there was a transportation plan and there was other evidence that they had a certain amount of square footage and particular nses in mind. That kind of breakdown is what people understood at the time to be what was going to be constructed there. What does the word "any" mean? That is what is in dispute. Sometimes in proffers the word "any" is used in an inclusive sentence because in the PD district you have to reserve uses or you can lose them. It is a word that has some ambiguity. Because the applicant is using that word to fundamentally change what the Zoning Ordinance requires for a mixed use center and what the Town Plan requires for a mixed use center that they need to be something more persuasive then - there is a word that is susceptible to two different interpretations in the proffers. When something is somewhat ambiguous by its nature you can look at the record to see what the patties were intending and in this case it is very obvious that the applicant was intending a tree mixed use center in accordance with the Town Plan and Zoning Ordinance. There were opportunities for the applicant to say, during the rezoning process, that they wanted something other than a mixed use center. I didn't see 4~ anything in the record during the discussion of the plan amendment that would give anyone cause to think the applicant was proposing a large retail center or a large office center. Councilmember Umstattd asked, if the Council voted to over rule the Zoning Administrator's imerpretation and ff the applicant then decided to amend the proffers to eliminate the 110,000 SF minimum office use, would the Council be consistent? Mr. Boucher stated, if the Council over turned the Zoning Administrator's determination, the Council would be agreeing that the applicant could build 466,000 SF of retail uses without going through any type of amendment procedure before this Council. If the Council then wanted to ask the applicant to include an office component, the Council could do that before approving any amendment. MOTION: Councilmember B. J. Webb made a motion that the Town Council affirm the Zoning Administrator's interpretation of the proffers for #ZM-147 and find that the Zoning Administrator correctly held that a mixed use center requires a substantial office component. The motion was seconded by Councilmember Umstattd. VOTE: Clem Nay: Councilmembers Buttery, Emswiller, Trocino, Umstattd, B. J. Webb, William F. Webb, Mayor None AGENDA ITEM2. TO CONSIDER REZONING APPLICATION #ZM-154 POTOMAC STATION RETAIL L.L.C., CONCEPT PLAN AND PROFFER AMENDMENT Ms. Seigfried provided the staff report, stating she received signed proffers and a memorandum of clarifcafion this evening, both dated June 12, 1998. Many of staff's comments have been addressed, however, there are still some significant, outstanding concerns such as entrances into Battlefield Parkway, and offsite dedication construction. Staff has reviewed the right-of-way agreement and it does not appear to be adequate to accommodate the full section for Battlefield Parkway. There are inconsistencies between the proffers and the traffic study and concept plan. Mayor Clem asked, what mix of office and retail did the staff and applicant arrive at? Ms. Seigfried stated, the minimum office of 110,000 SF, is 40% of the 275,000 SF of retail. Since the retail is a maximum of 275,000 SF and the overall 466,286 SF still exists - leaves a potential for another 191,000 SF of office and this ration would be approximately a 40-60 mix of uses. Councilmember B. J. Webb asked if there is any phasing requirement between the office and the retail? Ms. Seigfried stated, just the transportation. Ms. Webb referred to the fire and rescue facilities and asked if this is a one-time only - at time of construction, contribution of $. 10 per gross SF with no annual contribution from the retail or the office? Ms. Seigfried stated, that is correct. Councilmember Buttery asked ff the right-of-way for Battlefield Parkway is available? Ms. Seim*ried stated, it does not appear from the documentation that from Potomac Station to Route 7 the right-of-way agreed upon is adequate. Mayor Clem stated, the applicant, staff and Council needs to meet to make sure that everyone understands all the proffers properly. Mr. Minchew stated it is his understanding that the outstanding issues had been resolved. The mix issue between retail and office has been addressed. The Battlefield Parkway entrance has been improved significantly. The proffers have been amended to put in new trigger points when the median break would be closed. There is a policy issue regarding the Battlefield Parkway entrance. The town staff will never support any kind of Battlefield Parkway entrance point. Concerning the fight-of-way, we have met with the owner and he has told us the right-of-my will be provided upon request. We have a statement from the owner that he will provide the right-of-way. Even as a fail-safe, if we could not obtain the right-of- way, we have put in the proffers that we would never ask the town for eminent domain and we will never go to phase 2. The current proffers are silent as to the western two lanes of Battlefield Parkway. Mr. Gauthier stated, when the DCSM was adopted by the Town Council, the plan for Battlefield Parkway adopted a prohibition for direct commercial access on Battlefield Parkway. That was done for a reason. Quote from the policy of Geometric Design of Highways and Streets "For principle arterials, (Battlefield Parkway) service to abutting land is subordinate to travel service to major traffic movements and such service, direct access to land should be purely incidental to the primary functional responsibility of this class of road." Mr. Minchew is exactly correct, this is a policy issue, in that, with Battlefield Parkway it is not a limited access road but we are trying to limit access to the roadway so that it serves its major function as a principal arterial in the town. Mr. G-authier asked the Council to picture the Leesburg Plaza Shopping Center, the entrance into Kmart and place a traffic signal there because there will be a traffic -5- signal on Battlefield Parkway at the entrance to the proposed mixed use center - it is proffered. Let the signal at the entrance to Kmart stay there for two or three years and then close the entrance. What do you think the occupants, tenants and the owner of that shopping center, who are far removed from the proffer/rezoning process going to say? There is a provision in the proffers for notification that the applicant say his successors and assigns will notify the tenants in the shopping center that the access is going to be closed. What happens if the applicant/successor or assign does not notify the tenants? Is the town going to pull the ocaupancy permits from the tenants? The Council needs to think about this when trying to resolve this policy issue. Think about what this will do to Battlefield Parkway ff both of these application are approved. There would be a traffic signal at Fort Evans Road. A traffic signal at Potomac Station Drive. The alignment study states this should be grade separated with no connection. A traffic signal to the entrance of the mixed use. A traffic signal at the north loop ramp that Leegate is proposing. South of Route 7 there would be a traffic signal at the south ramp of the loop. A traffic signal at Russell Branch Parkway and a traffic signal at Trailview. There would be 7 traffic signals ffboth applications are approved. The Council needs to consider the big picture. Mr. Gauthier stated, with regard to the conflict between the proposed square footage depicted on the concept plan and the proffers and the traffic analysis. There is no traffic study for the specific mix of use as 110,000 SF of office, 275,000 SF of retail, 150 multi-family units and direct access onto Battlefield Parkway. The last traffic study the applicant performed had 265,000 SF of retail and 150 multi-family units. The applicant has provided a number of scenarios of different developments for the project and stated the total daily trips will never get bigger than the original study. I don't know how these entrances are going to work. With regard to the proffered road improvements on the land of others, there is an easement of record which calls for sixty feet of right-of-way. The preliminary plat for Battlefield Parkway shows that 59 feet are needed from the center line of Battlefield Parkway to the face of curb on Battlefield Parkway southbound onto Route 7 to accommodate all turn lanes. This leaves one foot from the face of curb to the right-of-way line. The preliminary plat also shows grade. The grading extends out over 100 feet and this is not an easement either. It states, ffyou want easements you have to go to the owner to get them. Staff is concerned in saying that Battlefield Parkway is guaranteed. With regard to Potomac Station Drive, 47 feet are required for a haft section at the intersection. Forty-five feet have been provided. The applicant, on the preliminary plat to make this work has shifted everything onto the right- of-way which is not the town's policy to do this. At this point, the town does not have everything it needs to make this development the fashion that the town wants. When the Council approves a rezoning, the Council is saying this is the way we want this properly developed. This is how we believe it should be developed. Do you really want to approve a rezoning that has a catch in it that says, if you can't get something from the guy next door - you can't develop? Is this the position the town wants to be in? Councilmember Umstattd asked Mr. Gauthier how many of his concerns would have existed had this proffer amendment issue never arisen? Mr. Gauthier stated, the 1994 rezoning did not have the western two lanes of Battlefield Parkway. The engineering department has been pointing out for some time that when you have improvements on the land of others - you sometimes don't get what you want. Councilmember B. J. Webb stated she would like to have the transportation issues clarified and closing the temporary entrances to the mixed use, at some point in the future, are of concern. Ms. Webb also expressed concern with the multi-family use. Councilmember Emswiller stated, with regard to phasing of the project, the retail would begin first and there is no trigger when the office would start. Ms. Emswiller asked if there is a way of starting the office when the retail is started? Mr. Minchew stated, the applicant cannot get into the position of being forced to build speculative office, ff the office market keeps growing this would not be a problem. Mr. Minchew explained, with regard to closing an access point to a shopping center, that when you provide information to rational business people you will not here the objections in 2004. In addition, business people will never argue to keep open an entrance if it is unsafe. At the point in the proffers where Battlefield Parkway is carrying vehicle trips to where the median break would produce left turn movements that create danger, tenants and business people will not stand up and argue before this Council that they need to have the right to keep an entrance open that poses danger to their customers. By providing signage, bold face, 18-point print in all leases that the access point will go away and through any other way that the Zoning Administrator would say it is the best way. With an access point, it will be easier to keep the market alive at the shopping center. Councilmember Emswiller stated, because there is no time certain or phasing plan in place, it could be another 10-15-20 years before phase 3 of the project developed. Ms. Emswiller stated she would feel more comfortable if there was a traffic study prepared by the town and paid for by the developer to see how the traffic impact is doing. MS. Emswiller pointed out that the proffers state the trigger point is after starting phase 3 and that could be forever. Mayor Clem stated he recalled discussions that phase 3 would automatically trigger a traffic study to determine if the traffic exceeded a level of service C. Having the commercial component on parcel A and the office on parcel B is the proper thing to do. Mayor Clem asked for a clean set of existing proffers as they exist today. Along with a separate sheet of paper showing what is being proposed to be changed. Mr. Tompkins pointed out that the Council will be comparing two different applications. He suggested preparing for the Council a list of the outstanding policy issues tied to the existing proffers along with any changes the applicant proposes. Councilmember Emswiller thanked Mr. Gauthier and Mr. Boucher for the outstanding job they have done on two very important and difficult applications. Staff has presented its case in a very thoughtful way. A special meeting was scheduled on June 24, 1998 at 4:30 p.m., to further consider this matter. MOTION: On motion of Councilmember B. J. Webb, seconded by Councilmember Emswiller, the following motion was made. Pursuant to Section 2.1-344 of the 1950 Code of Virginia, as amended, I move that the Leesburg Town Council convene in Executive Session. The authority for this Executive Session is found in Section 2.1-344 (a), Subsection (3) of the 1950 Code of Virginia, as amended. The purpose of this Executive Session is to consider the acquisition of real property. VOTE: Aye: Councilmembers Buttery, Emswiller, Trocino, Umstattd, B. J. Webb, William F. Webb, Mayor Clem Nay: None MOTION: On motion of, and duly seconded, the following resolution was proposed and unanimously adopted. 98-141 - A RESOLUTION: CERTIFYING EXECUTIVE SESSION OF JUNE 16, 1998 VOTE: Aye: Councilmembers Buttery, Emswiller, Trocino, Umstattd, B. J. Webb, William F. Webb, Mayor Clem Nay: None On motion of, and duly seconded, the meeting was adjourned. Clerk of Council Sardis E. Clem, Mayor