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Home My Public Portal About2005_05_10_O007The Town of Leesburg, Virginia ORDINANCE NO. AN ORDINANCE: 2005-0-7 PRESENTED: ADOPTED: May 10, 2005 May 10, 2005 APPROVING TLZM-2004-0006 KINCAD FOREST REZONING AND CONCEPT PLAN AMENDMENT TO REPLACE 20,040 SQUARE FEET OF OFFICE/COMMERCIAL/RETAIL USE WITH A 38 UNIT TOWNHOUSE DEVELOPMENT. WHEREAS, Towns of Kincaid LLC has submitted an application for concept plan and proffer amendment for Section 8 of the Kincaid Forest Planned Residential Neighborhood originally approved under #ZM-110 on February 27, 1990; and WHEREAS, the applicant proposes to replace the 20,040 commercial/office/retail neighborhood convenience center with a 38 unit town home development within the PRN, Planned Residential Neighborhood Zoning District; and WHEREAS, on March 3, 2005, the Planning Commission recommended denial of this application for failure to comply with goals and objectives of the Land Use Element of the 1997 Town Plan; and WHEREAS, the applicant revised the concept plan and proffers to address some of the Planning Commission concerns; and WHEREAS, on April 26, 2005 the Town Council held a duly advertised public hearing on this application; and WHEREAS, the proposed concept plan and proffer amendment furthers the Transportation Element of the 1997 Town Plan with the construction of two (2) northbound lanes of Battlefield Parkway between Tavistock Drive to Kincaid Boulevard; and WHEREAS, the Council has concluded that the approval of the application would be in the public interest and in accordance with sound zoning and planning principles. -2- AN ORDINANCE: APPROVING TLZM 2004-0006 KINCAID FOREST REZONING AND CONCEPT PLAN AMENDMENT TO REPLACE 20,040 SQUARE FEET OF OFFICE/COMMERCIAL/RETAIL USE WITH A 38 UNIT TOWNHOUSE DEVELOPMENT. THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. Rezoning concept plan and proffer amendment application #TLZM-2004- 0006 Kincaid Forest is hereby approved subject to the proffers last dated May 4, 2005. SECTION II. Severability. If a court of competent jurisdiction declares any provision of this ordinance invalid, the decision shall not affect the validity of the ordinance as a whole or any remaining provisions of this ordinance. SECTION III. This ordinance shall be in effect upon its passage. PASSED this l0th day of May 2005. Kn~ C. Untrs"[attd, l~la~ ~'" ( Town of Leesburg ATTEST: erk of Council- TLZM-2004-0006 ORDRevFinal TLZM 2004-0006 KINCAID FOREST PROFFERS SUBMITTED BY MORTGAGE INVESTMENT TRUST CORPORATION IN CONNECTION WITH APPROVAL BY THE TOWN OF LEESBURG OF A CONCEPT PLAN AMENDMENT AND PROFFER AMENDMENT TO THE KINCAID FOREST PLANNED RESIDENTIAL NEIGHBORHOOD APPROVED IN REZONING APPLICATION #ZM-110 Property: Tax Map 49, Parcel 22B1, MCPI 190-38-4843 Approximately 6.34 acres Date: FEBRUARY 17, 2005 REVISED: April 6, 2005 FINAL: MAY 4, 2005 Preamble Pursuant to Section 15.2 -2298 of the Code of Virginia, as amended, and Section 3.3.2 of the Zoning Ordinance of the Town of Leesburg (hereinafter called the "Town"), the undersigned, Mortgage Investment Trust Corp. (hereinafter called the "Applicant"), is the owner of approximately 6.34 acres described as Loudoun County MCPI 190-38-4843, hereinafter called the "Property". Applicant hereby voluntarily proffers on behalf of itself, and its successors and assigns, that if the Leesburg Town Council approves Town Application No. TLZM 2004-0006 to amend the Concept Development Plan and Proffer Conditions for #ZM-110, originally approved on February 27, 1990, then the development of the Property will conform to the development conditions set forth below. All other proffers previously accepted by the Town, relating to all portions of the Kincaid Forest community, except where superceded or amended herein, shall continue in full force and effect, including proffers approved in ZM#110. Exhibits and tables referenced herein are attached hereto and hereby incorporated in this Proffer Statement. A. AMENDED CONCEPT PLAN 1. Applicant proffers that development of the Property shall be in substantial conformity with the revised Concept Plan (the "Concept Plan") attached hereto, entitled KINCAID FARM (EXHIBIT "A"), originally prepared by Patton Harris, Rust & Associates, and originally dated May 8, 1989, and last revised December 6, 2004, attached hereto and made a part hereof. 2. All elements on the Concept Plan are subject to change as necessary for compliance with PRN requirements, land development regulations and engineering standards of any governing authority and as approved by the Town of Leesburg. The Applicant reserves the right to alter the location of public or private roads and the location of the entrances to public roadways during site plan review, provided that the changes requested remain consistent with the intent of the Town Plan and are approved by the Town of Leesburg and in substantial conformity with the Concept Plan. AMENDMENT TO PROFFER STATEMENT Kincaid Forest Concept Plan Amendment Page 2 units. Development on the Property shall consist of a maximum of 38 townhouse B TRANSPORTATION 1. Battlefield Parkway Improvements: Prior to the issuance of the 13th occupancy permit for new dwelling unit constructed on the Property, the applicant shall design and construct the following public streets depicted in Phase 5 of the Development Schedule on the Concept Plan in accordance with Town of Leesburg And Virginia Department of Transportation Standards. These proffered improvements will be constructed at no cost to the Town. Two northbound lanes of Battlefield Parkway along the frontage of Section 8, Kincaid Forest, as shown on Exhibit A, including necessary turn lane(s) at the intersection with Kincaid Boulevard. The location of the sidewalk/trail within the right-of-way as shown on Exhibit A shall be determined by mutual agreement between the Town and the Applicant prior to development plan approval. Two "off-site" northbound lanes of Battlefield Parkway within the existing dedicated right-of-way from Travistock Drive to the southern boundary of Section 8, Kincaid Forest, including necessary left hand turn lane at the intersection of Lawson Road. If off-site easements are needed for any of the improvements specified in this proffer and are not available, the Applicant will make a good faith effort to acquire the same by donation or proffer to the Town. The location of the sidewalk/trail within the existing right-of-way shall be determined by mutual agreement between the Town and the Applicant prior to development approval. 2. Off-site Acquisition: The Applicant shall acquire any needed off-site easements not owned by the Applicant for the road improvements identified in Proffer B. 1 above, where possible. Where easements necessary for construction of proffered improvements cannot be obtained either i) voluntarily through donation or proffer to the Town; ii) through purchase at fair market value by the Applicant, the Applicant shall request that the Town, upon written request to the Town Manager and Zoning Administrator, acquire such easements by appropriate eminent domain proceedings by the Town, with all costs associated with the eminent domain proceedings to be borne by the Applicant, including but not limited to land acquisition costs, in accordance with procedures established by the Town. Should the Town refuse or fail to allow for its power of eminent domain to be used so as to allow for the acquisition of these off-site easements within eight (8) months of receipt of AMENDMENT TO PROFFER STATEMENT Kincaid Forest Concept Plan Amendment Page 3 written request from the Applicant, the Applicant shall provide a cash equivalent contribution of the land value or such easements, the associated road improvement and land acquisitions cost in an amount equivalent contribution of the land value of such easement, the associated road improvements and land acquisitions costs in an amount equivalent to two (2) percent of the land value in fulfillment of these proffers. Should the Town choose to exercise its power of eminent domain and acquires the off-site easements within nine (9) months of receipt of a written request from the Applicant, the Applicant will then construct the road improvements that required the off-site easements. 3. Variation Required. Should a variation under Subdivision and Land Development Regulations Section 13-91 be granted to allow the Applicant to use a private parking court to serve 3 8 townhouse units, the Applicant will design and construct the private parking court in accordance with Town and Virginia Department of Transportation standards 4. Other Transportation Improvements - Regional Road Improvements Contribution: The Applicant shall make a one time cash contribution payable to the Town of Leesburg in the amount of Two thousand four hundred thirty-four and 50/100 Dollars ($2,434.50) per residential dwelling constructed on the Property, and shall be paid prior to the issuance of a zoning permit for each residential unit. The per unit cash contributions proffered in this paragraph shall be adjusted annually in accordance with the CPI published by the Bureau of Labor Statistics, U.S. Department of Labor, beginning with the year 2006. C. CASH CONTRIBUTION 1. Public Safety: The Applicant shall make a one time cash contribution payable to the fire and rescue facilities providing service to the Property in the amount of One Hundred sixty-two and 30/100 Dollars ($162.30) per residential dwelling constructed on the Property, and shall be paid prior to the issuance of a zoning permit for each residential unit. The per unit cash contribution proffered in this paragraph shall be adjusted annually in accordance with the CPI published by the Bureau of Labor Statistics, U.S. Department of Labor, beginning with the year 2006. 2. Public Park Contribution: The Applicant shall make a one time cash contribution payable to the Town of Leesburg in the amount of Three Hundred twenty-four and 60/100 Dollars ($364.60) per residential dwelling constructed on the Property, and shall be paid prior to the issuance of a zoning permit for each residential unit. The per unit cash contributions proffered in this paragraph shall be adjusted annually in accordance with the CPI published by the Bureau of Labor Statistics, U.S. Department of Labor, beginning with the year 2006. AMENDMENT TO PROFFER STATEMENT Kincaid Forest Concept Plan Amendment Page 4 D. CASH IN LIEU OF CONSTRUCTION In all proffers wherein the Applicant has agreed to construct road improvements, the Applicant shall contribute to the Town or its designee an amount equal to the actual cost of constructing such improvements in lieu of actual construction if said improvements have been constructed by others. For the purposes of determining the in lieu of contribution, construction costs shall be defined as all engineering, surveying, bonding, permit fees, utility relocation, and other actual costs of construction, and shall be determined by a cost estimate prepared by the Applicant and agreed to by the Town. Such contribution in lieu of actual construction shall occur at the time specified in the applicable proffer for construction or for bonding of the improvements for construction. Notwithstanding the foregoing, in no event shall the Applicant be responsible for the construction costs in excess of $1,100,000.00. E. KINCAID FOREST HOME OWNERS ASSOCIATION At the time of the issuance of each zoning permit, the Applicant shall contribute Three Thousand Dollars ($3,000.00) for each townhouse to the Kincaid Forest Home Owners Association (the "Association"). Said contribution shall escalate on a yearly basis beginning with the base year of 2006 based on the Consumer Price Index (CPI). In lieu of the cash contribution per townhouse, the Association, at its sole discretion, may direct the Applicant, prior to the issuance of the first zoning permit or payment of cash contribution, to construct a 23' by 20' expansion, with a kitchenette, to the existing Kincaid Forest Community pool house, and construct an illuminated entrance sign, in a location mutually agreed upon between the Association and the Applicant, and further subject to the Town of Leesburg sign regulations. Construction on the pool house will commence within nine months of the issuance of the first occupancy permit, or at such later time as the Association may direct so as to avoid construction during the pool season. Notwithstanding the foregoing, once the Association accepts the first cash contribution from the Applicant, their right to elect construction in lieu of cash shall terminate. MISCELLANEOUS These proffers are filed in accordance with Section 15.2-2298 of the Code of Virginia, as amended, and Section 3.3.16 of the Zoning Ordinance ofLeesburg, Loudoun County, Virginia. The Applicant warrants that all of the owners of the Property have signed this Proffer Statement, that they have full authority to bind the Property to these conditions, and that they have voluntarily subjected the Property to these proffer conditions. AMENDMENT TO PROFFER STATEMENT Kincaid Forest Concept Plan Amendment Page 5 OWNER: MORTGAGE INVESTMENT TRUST CORP. By: Name: Its: