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HomeMy Public PortalAbout2009.03.16 BAR Meeting MinutesDEPARTMENT OF PLANNING AND ZONING Town Hall, 25 West Market Street, Leesburg, VA 20176 TEL 703-771-2765 FAX 703-771-2776 www.ieesburgva.gov MINUTES OF THE BOARD OF' ARCHITECTURAL REVIEW Monday, March 16, 2009 25 'Nest Market Street Council Cliaoilier MEMBERS PRESENT: Teresa Minchew (Chair), Dieter Meyer (Vice -Chair), Marilyn Bos, Tracy Coffing, Richard Koochagian, Bob Miller, Jim Sisley, Doris Kidder, Councilmember Tom Dunn MEMBERS ABSENT: none STAFF: Annie McDonald, Wade Burkholder, Barbara Notar, Wendy Walker Call to Order and Roll CaII Ms. Minchew called the meeting to order at 7:03pm, noted attendance and determined that a quorum was present. Approval of Minutes Ms. Bos moved to approve the February 18, 2009 minutes; Ms. Coifing seconded the motion, and it passed 6-1 (Mr. Meyer abstained). BAR Member Disclosure Mr, Meyer disclosed regarding BAR case TLHP-2009-0008 (10 South King Street) that he serves on the Downtown Improvement Association (DIA) Board with Mr. Zacchariasse of Waterford Development and had talked in general about the project but no specifics. Discussion Agenda 1. TLHP-2009-01702, 222 South King Street, Applicant: Christopher Todd (Waterford Development), re: new construction — Old and Historic District (H-1 Overlay) Ms. McDonald summarized the application's BAR approval of the parking garage concept, demolition, new construction concept, 214 King Street relocation, conditional approval of the 222 and 224 King Street details, as well as the Applicant's revisions per the BAR conditions and comments from the March 9th work session. Staff recommended approval of the revisions as amended with the lighting deferred until the lighting plan, and the sidewalk railings deferred until the landscape plan. The Applicant, Christopher Todd, lauded the thorough staff explanation of the past week's work and helpful BAR feedback from the previous week's special meeting. Mr. Meyer queried if the proposed gray colour was the warm tone in the colour rendering or the cool tone sample to which the Applicant explained that the plotter was not totally accurate. The paint chip being the proposed colour which is similar to the Chantilly office building photo as displayed, emphasizing that the cooler tone lets the penthouse recede more as well. Staff noted the red brick for the proposed building is a greater contrast than in the Chantilly building example. Ms. Kidder referenced the March 9th work session straw vote regarding the brick screen wall, adding that contemporary buildings have metal screening with hip roofs to hide the equipment on BAR Minutes — Marc!, 16, 2009 per the guidelines but that this sign was grandfathered though it is still non -conforming. Ms. Minchew clarified the Board's approval is based upon the design's compatibility. Mr. Dunn broached whether the plexiglas should be removed if the vinyl material is the issue, or if the colour scheme should match the historic district, and that there already exists contradictory examples in the H-1 and H-2 areas. Mr. Meyer identified that the colours and plexiglas are not appropriate in the historic district, but that the property is just over the line in the H-2 Overlay so though it is not conflicting per se, the concept is to accomplish blending between the overlays and encourage more historic district style signs. Ms. Bos indicated the corporate colours could be subdued as was requested of nearby Midas, and that the sign does not impact Dodona Manor since the road turns near the location. Ms. Coffing agreed that the corporate colours should be modified or toned down, as well as use of another material than plexiglas. Mr. Meyer concurred with the staff report, and that the bright yellow colour is not compatible with the building and probably not the bright green either, but that if the colours were modified it could be compliant with the compatibility guideline. Additionally, Mr. Meyer also agreed with the staff assessment about the materials and overall composition as the design was very busy. Mr. Koochagian agreed in most part with Mr. Meyer and the staff assessment, and Mr. Miller also concurred with the staff assessment. Mr. Sisley indicated the design guidelines lead him to concur with staff though there is the issue of permitting a business to express their corporate identity. Ms. Minchew acknowledged not thwarting a business from being successful, but that tweaking the corporate colours had been done previously and easily to meet guidelines. Ms. Minchew further indicated agreeing with the staff assessment, and that though the fonts are busy, the colour scheme is the main non-compliance issue, requesting to see a redesign. The Applicant asked if the yellow background was the primary issue to which Ms. Minchew responded the concern is the yellow as well as the overall composition and that white may better tone down the appearance. The Applicant indicated the sign is too close to the road to get much attention to which Ms. Minchew asked if a sign plan for the whole structure had been considered. The Applicant responded no, but that the sign appearance could be toned down yet still retain their corporate identity. Queried by the Applicant and Ms. Minchew, Mr. Burkholder responded that the use of plexiglas was not required so other materials could also be considered. Ms. Bos advised that the corporate headquarters may have alternatives as businesses often have to tweak designs based on historic district standards. Mr. Dunn questioned if the Applicant sought to paint the moulding and border around the building a colour other than gray to which the Applicant indicated the trim was repainted more as an update rather than a colour change. Reminding that the structure was in the H-2 District, Mr. Dunn noted if green was considered that various greens are used in the H-2 so there is flexibility. Mr. Meyer moved to defer BAR case TLHP-2009-0013 until the next regularly scheduled meeting (April 201h); Ms. Bos seconded the motion and it passed unanimously 7-0. Administrative Agenda Election of Officers: Noting the election delay from the January target date, Ms. McDonald recommended the Board members nominate officers for the chair and vice -chair positions. Ms. Coffing moved to keep Ms. Minchew as the BAR Chair and Mr. Meyer as the Vice -Chair; Mr. Sisley seconded the motion and it passed unanimously 7-0 with both the Chair and Vice -Chair agreeing to another term. Ms. Minchew further added about refining discrepancies between the current bylaws, denoting a January election and the Town Council mandate for July elections. Items referred to BAR by Town Council: Ms. McDonald shared that the Town Council was addressing the existing arbitrary and capricious appeals process, and that for most other Virginia municipalities it is based upon an arbitrary and capricious nature of the BAR decision (unequal or inequitable application of the design guidelines), or as contrary to law (acting in open violation of the ordinance). Last summer, the Page 3 of 8 BAR Minutes — March 16, 2009 Council considered opening the appeals process for full review regarding arbitrary and capricious, contrary to the law, or a third process which evaluates a project on its own merits and replacing the BAR decision with Town Council's own judgment. Not many Virginia municipalities follow the third process though Portsmouth has a new appeals process with an intermediary review committee comprised of two people (the Town Attorney and Director of Planning or their designees) to determine whether an appeal has merit and if it should proceed to the City of Portsmouth for review. An appeal of any Town Council decision to the Circuit Court is based upon the arbitrary and capricious or contrary to the law language as per the code, therefore the standard to which the Circuit Court adheres is what Town Council established for the BAR in applying the guidelines and consistency. Ms Minchew added that it seems a mistake if the Town Council chooses to change the process for the BAR as the Council will still be held to that very strict standard. Mr. Sisley asked Ms. Notar, Deputy Town Attorney, if liability is increased or altered for the Town if review rules are changed by a second board to which Ms. Notar indicated the BAR needs to decide if all applicants cleave to a de novo appeal process which is a 'do over' of sorts, allowing applicants to appeal to Town Council for something other than an arbitrary and capricious claim which is difficult to overcome (i.e., determine the BAR made an outrageous decision). Ms. McDonald added that most jurisdictions in Virginia do not have the de novo appeal process since it leaves the BAR decision as irrelevant, and that it is unclear about Portsmouth's appeal process as the legal code is not written as de novo either, but that the review committee determines whether Council hears the case. Ms. Minchew cited that last summer the Board did not think this was a valid program change, and Mr. Sisley acknowledged that if the de novo appeal is enacted then there is no need for the BAR to attend meetings as the review process should just be done by the Town Council. Mr. Sisley requested further clarification from Ms. Notar regarding the liability of changing the appeal process in protecting the Town Council's time to conduct other business not under review of the Board to which Ms. Notar agreed it was not efficacious. Mr. Meyer indicated there would probably not be more appeals, but rather only the controversial cases that are split vote and have a large public meeting attendance. Ms. Minchew noted that there is then no incentive for the applicant to work with the BAR since they can easily and quickly appeal to the Town Council to which Mr. Meyer agreed as an applicant may leverage political support. Ms. McDonald added that BAR members receive some capacity of training and a degree of insight by interacting with staff of which Council does not always benefit or have access to that level of training and procedural knowledge. Ms, Minchew further cited that the BAR members were specifically valued, and chosen for their knowledge and ability to make decisions for the Town Council. Additionally, though the Virginia Municipal League is wonderful and several BAR members attended the recent conference, Ms. Minchew cautioned that their changes proposed for Fredericksburg are for communities starting review programs. Leesburg has a sophisticated approach to the BAR and historic district review, as one of the first municipalities to implement such a program and having already worked out a few of the kinks, so it is important to remember this aspect when speaking to Council for the program ideas are not targeted toward Leesburg's BAR. Rather than completely changing the program, any parts that are not working (e.g., disagreement with BAR decisions that are guidelines compliant) can be identified, and revised by Council with a public hearing and by amending the code in the Zoning Ordinance. Mr. Sisley indicated for the record that he was not in favor of establishing a de novo process to which the other Board members agreed it was not a good idea. Ms. McDonald reminded that the expiration of BAR approvals is currently good for two years as it may take more than one year to get site plan approvals, and though two years had not been a hindrance, the Town Council queried if the expiration should be expanded; or if two years is sufficient, then should the expiration be from the date of BAR approval or from the date that all final approvals are received from the Town. Noting it should not include obtaining the Loudoun County building permit since the Town cannot manage that timeframe, and applicants can wait and hold Town approvals. Additionally, complications prevail with rolling start dates as there are varying dates for similar projects based on building use (i.e., commercial versus residential), and whether the project requires a zoning permit, BAR review or administrative approval, as well as there being no demonstrated need for an expanded expiration. Mr. Meyer agreed though unnecessary, but to keep the process simple, to expand to a three-year expiration to aid the occasional project that is bogged down via the overall Town approval process, Page 4 of 8 BAR 'Minks — March 16, 2009 instead of a rolling clock approval. Previously, there was a 12 -month approval lifecycle and it was extended to 24 months as a result of one approval that expired, but then a building was demolished and the lot is still vacant as a result of market conditions. Thus, early demolition of viable buildings should be abated, even if they are not the best buildings as it is better than a hole in the ground which is a serious blight to the community. Ms. Minchew responded that the BAR sometimes perceives issues differently than the Town Council's concerns, but the Town Attorney opined a BAR approval condition for demolition can be tied to the County building permit, though 1# must be included in the approval motion until it is institutionalized in a different way. Mr. Meyer further expounded that in down times developers may obtain a building permit and tear down a structure but not rebuild necessarily so the permit may not be the best thing to link approval to since demolished buildings show very poorly on the Town. Mr. Sisley questioned if lengthening the approval to three years creates a barrier to demolition to which Mr. Meyer indicated it is two distinct issues, noting his concern regarding the previous BAR approval that expired and resulted in demolition, and that a different BAR membership could have voted differently upon case resubmission so hopefully a longer period would allay such an issue. Mr. Sisley remarked that the real estate business also suffers when people pull building permits and not build a building, but is not certain that a three-year BAR approval applicability timeline can preclude such scenarios, and that it is in the Town's interest to be expeditious with projects, encouraging quick action before market conditions change. Ms. Minchew posed that other jurisdictions have an administratively -granted appeal option for a six-month extension to which Mr. Sisley added the approval can be conditioned so that it cannot be unreasonably withheld. Ms. McDonald further offered the extension may be for one year and conditioned on the project remaining unchanged from the initial approval or it shall return to the BAR for a new review. Ms. Minchew indicated preference for a six-month extension, not longer, and Mr. Koochagian agreed with Mr. Sisley that the Town make the process faster to enable applicants to build their projects. Mr. Meyer stated projects move forward if they are economically viable so a three-year period will help in economic downturns. Mr. Sisley remarked that the Board was addressing these areas of process because of the current economic downturn, and that banks do not fund construction projects until 50 percent or greater of preleasing is done as per the loan's approval conditions which doesn't happen in downturns, therefore the building cannot commence. Though positive financial trends have fortunately and mostly been the experience, the danger in sustaining a longer approval is that an entrepreneurial owner of an improved property tries to solicit and advance the sale of the property based on the added value as enhanced by a BAR approval. That is, the project was not intended to progress until the last days of the approval as the applicant leverages the gained BAR approval value and awaits buyers, or until forced by an expiring approval to obtain permits for a project to advance which is a detriment to the community. Mr. Meyer acknowledged the good argument against the three-year approval and questioned if an extension should be six months or one year to which Mr. Sisley indicated delineating solid reason to craft appropriate and accurate conditions as well as rely on available legal resources. Ms. Minchew added that materials, designs and review boards change which may be another reason to not have a longer approval period. Mr. Meyer illustrated the appropriateness and need for at least the two-year timeframe as it would be unduly burdensome to obtain re -approvals to which Mr. Sisley agreed, and Ms. Minchew further added that any longer would give other departments free reign to not expedite projects. Joint Meeting with the Planning Commission: Ms. McDonald indicated the March 19th Planning Commission meeting would not discuss BAR issues until after 7:30pm and that the discussion results were scheduled for the Town Council April 14th meeting agenda. The Board should come to the meeting with a unified opinion regarding discussion points — appeals of BAR decisions to the Town Council, expiration timeframe for BAR approvals, and timing of the BAR review of rezoning and special exception applications. Currently there is a mandated BAR review following the legislative application which makes it more difficult for applicants as noted by major developers and land use attorneys so Town Council requested input about a more appropriate solution. Staff recommendation is for an integral approach with the BAR serving as a referral agency, issuing a recommendation to the Planning Commission — not approving a project, but recommending it be approved with conditions as necessary for a more integral, comprehensive approach. Page 5 of 8 BAR Minutes — March 16, 2009 Town Council is interested in more flexibility with an applicant able to use one approach or the other which has its pros and cons. An applicant can interpret a Town Council approval to mean the site plan is approved to which the applicant can then appeal a BAR denial or modification recommendation to the Council, or go to the Council for an amendment to the concept plan which requires Planning Commission input. The BAR previously used the integral approach for almost two years before the legislative approval first process was restored, though it had been successful (e.g., Commerce Bank project and Waterford's King Street project concept approval for the parking garage), albeit for the exception of the Georgetown Park project which was a quagmire not because of how it was processed, but rather due to the final BAR vote to deny which the Town Attorney determined it was not appealable since it was not a final action. Ms. Minchew further expounded upon the Georgetown Park kerfuffle and that the end result may not have been any different if it had been a recommendation, in that the applicant had gone to Town Council for an approval and the case returned to the BAR with a slightly different proposal. Ms. Minchew queried if there were any downsides of the recommendation approach versus a legislative vote to which Ms. McDonald defined a non -BAR disadvantage in the possible effect of BAR member changes and opinions in the lifecycle of a project. Ms. Minchew assented, in safeguarding applicants, it would be harder to counter a BAR approval versus a previous recommendation so it should be made clear as a raised flag issue, as well as determining factors for the procedural process choice of going to the BAR or Town Council first. Ms. McDonald shared about the various approaches of other municipalities, and staff recommendation for applicants to come to the BAR first for recommendations as a referral agency to which Ms. Minchew indicated in the past the BAR had given non -binding feedback early on, though it was very general and didn't eliminate all problems. Ms. McDonald stated the continued need for a public hearing, but now making an educated and informed decision to work out the details for an integral approach that makes sense, and is a fair and equal process for all applicants. Mr. Meyer indicated strongly concurring with the staff recommendation for an integral approach because providing early BAR assessment can help big projects move along before all elemental details are identified. Mr. Sisley expressed concern about keeping the process fair to all applicants in using several approaches to which Ms. McDonald echoed the need to make the process equal for alt applicants. A potential glitch which currently exists is that an applicant may presume legislative action on a concept plan will also mean BAR approval so the dispute is if the applicant comes to the BAR at the front of the project or later. Mr. Sisley surmised that several Board members viewed it is as positive for the applicant, especially on large projects, to preliminarily review size, scale and mass to which Ms. Minchew added the importance of also seeing the site plan early on. Mr. Koochagian requested if a preliminary review process would be the same regarding regular public hearings, signs posted and staff reports to which Ms. McDonald confirmed it would not be handled very differently from any other application as it answers the question of openness versus being unnoticed as presentation format only. Ms. Minchew questioned whether an applicant would rather have an actual in concept approval versus just a recommendation. Mr. Dunn stated that currently the BAR is not an advisory board to Council to which Ms. Minchew responded that the BAR is an advisory board in certain capacities as per the legislative language, and Mr. Dunn added that the BAR has a distinct appeals process to Council for applicants. Mr. Dunn further indicated his approval of the current BAR program continuing with one slight change of a less strict appeals process, and that he likes that the BAR can enforce guidelines and make a consideration after hearing from two other bodies — the legal planning body of the Planning Commission as well as the political will (desires of the community) from the Town Council. Ms. Minchew expressed concern for the applicants regarding a process that lets them know where they stand and having a mechanism for casual input. Mr. Meyer indicated repeatedly hearing as such from applicants and developers the desire to come to the BAR early for direction as the guidelines are open to interpretation. Mr. Dunn added that applicants generally want a yes, but the details may have a lot of work so what applicants want and what they end up with can be different. Page 6 of 8 BAR Minutes — March 16, 2009 Ms. Minchew stated that if the current process remains, then it is very important to add a mechanism to hear applicants early in a casual way with pre -filing, a minimalist staff report, and notice; otherwise what the applicants have said is ignored. Ms. McDonald confirmed that previously applicants could present an early concept to the BAR with no formal application and that the old process worked fine. Ms. Minchew added the process worked until the Georgetown Park application was denied and the applicant tried to appeal the decision. Mr. Meyer expounded that the underground parking garage required a special exception so it was a unique case that the BAR approved in concept, but it still needed a special exception, and early referral for the likes of the building atop the parking garage is recommended to keep the project progressing. Ms. Minchew supported the idea and indicated if applicants have a choice, that it is made clear if they want to present to the BAR for early concept approval, or for referral only before going to Town Council. The Board surmised there was a general consensus amongst the members about the approach to address at the Planning Commission meeting on March 19tH Bylaws Committee update: Ms McDonald referenced Friday's March 20th scheduled meeting to address the outdated bylaws and what should be included, indicating she would provide the existing bylaws to the two members in advance of the meeting and highlighting their expertise — Mr. Sisley's nonprofit experience with bylaws, and Mr. Koochagian's interest in procedures and rules of procedures. Joint Architectural Review Board (JARS) update: Ms. McDonald updated about the coordination of the 2009 joint board nominations with the County, Middleburg and Purcellvilie, indicating waiting for final appointment of the other joint board members before scheduling a kickoff meeting where categories would be further identified, and suggesting the Board prepare to nominate worthy projects in the April 20th BAR meeting. Ms. Bos noted she sent a message about nominating projects that exceeded guidelines, timeframe considerations, and categories such as signs, residential, commercial, new construction or additions. Mr. Meyer proposed using a high standard, nominating projects that are out of the ordinary, to which Ms. Bos agreed. H-2 Corridor Committee update: Ms. McDonald mentioned the upcoming Tuesday, March 17th meeting to continue discussion of the current existing pros and cons as addressed in the meeting two weeks previous. Old and Historic District Design Guidelines update: Ms. McDonald informed the Board that the updated guidelines are available, albeit one boundary correction still in the neighborhood map, to which Mr. Sisley requested copies be environmentally sound by printing the document two-sided. Ms. Minchew expressed hesitation of disbursing the document until the error was rectified to which Ms. McDonald agreed since the guidelines is an official document adopted by the Town Council. Ms. McDonald further indicated proposed ordinance revisions would be approved in April, and Mr. Burkholder would be the staff person steering the ordinance through the Planning Commission, Ms. Minchew questioned when the new guidelines rule to which Ms. McDonald announced the Town Attorney stated the guidelines were adopted but not formally incorporated into the Zoning Ordinance so an applicant can use either the previous version or the newly approved guidelines for the evaluating process. Furthermore, once amended zoning ordinances are approved by Town Council, then the new guidelines rule. Ms. Minchew articulated the evening's approval of Waterford was per the old guidelines because the case was filed prior to new guidelines adoption. Mr. Meyer considered a possibly unfounded concern for an applicant that files a case in the period between the approval and adoption to which Ms. McDonald responded that now is such that time, therefore applicants are even more encouraged to work with preservation and zoning staff to meet required guidelines. Mr. Sisley asked if there was a case where the new guidelines are more restrictive than the previous guidelines to which Ms. McDonald responded no. Mr. Sisley then intimated that even if there were a case of a new guideline being more restrictive, that legal precedence and courtesy must rule for cases mostly complete to continue on the original path instead of requiring compliance with a new guideline to which Ms. Notar agreed. Ms. McDonald expounded that design guidelines are infrequently and substantially changed only every 10-20 years so it is not a major concern, and that once the ordinances pass, applicants will be directed to the new guidelines solely. Page 7 of 8 BAR Minutes — March 16, 2009 Staff approvals (for information only): TLHP-2009-0011, 2 West Market Street, re: new business signage. Training Opportunities (additional): Ms. Minchew queried about training opportunities to which Ms. McDonald indicated she was unaware of anything in the near future that was relevant. Adjournment: The meeting adjourned at 9:25pm. NEXT REGULAR MEETING: Monday, April 20, 2009 at 7pm Town Hall Council Chamber 25 West Market Street Leesburg, VA /1(ILC'.i (A) Teresa Minchew, Chair Wendy Walker, Clkrk of the BAR Page 8 of 8