Seated from left to right: Chuck Rotgin, Frank Stoner, Don Franco

Nearly all of the region’s developers were present for a September 30, 2008 meeting of the Albemarle County Planning Commission at which two work sessions were held. In the first, staff wanted Commissioners to review a series of

proposed changes to the ordinances that govern areas zoned Planned District and Neighborhood Model District

. In the second, Business Development Facilitator Susan Stimart reviewed changes to the County’s Comprehensive Plan that would expand on Albemarle’s economic development efforts.

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Chairman Cal Morris (Rivanna) opened the meeting by saying he wanted developers to have a chance to weigh in on the proposed changes. The sessions were held in Room 241, a conference room, rather than in Lane Auditorium, in order to facilitate a more intimate conversation.  Morris said he wanted to make sure the opinions of developers were heard on both topics. Commissioners Tom Loach (White Hall) and Jon Cannon (Rio) were not present.

The Planning Commission asked County staff to review a recent development and assess whether a property owner should maintain vested zoning rights even when they are not in agreement with current Comprehensive Plan standards.  On April 8, 2008,

the Planning Commission reluctantly approved a preliminary subdivision plat near Stone Robinson Elementary School and the Clifton Inn

for a project that, in its first phase, will produce 30 single family homes. Clifton Lake was rezoned in 1978 to allow for a Planned District development.  Thirty years later Dr. Charles W. Hurt reactivated his plans for the neighborhood  As a by-right development outside the County’s growth area, the Commission has little leverage to require the development to conform with the County’s water protection, erosion and sediment control and other environmental protection regulations that have been adopted in the past few decades.

Two weeks later, the Commission directed staff to come back with potential changes to the zoning ordinances that would require new site plans on “old” zonings to comply with existing regulations. County Attorney Larry Davis wrote a new regulation that establishes current zoning regulations as the default regulations, unless the current property owner can show a “vested interest” that would allow the original regulations to apply.

Senior Planner Elaine Echols said that she and staff identified two large undeveloped Planned Residential Districts that are similar to Clifton Lake, but she does not have enough information to determine whether the current property owner has a vested interest. One is located off of Barracks Road south of Montvue Road, and the other is off of US 29 and is owned by Wendell Wood’s Next Generation LLC.

Chuck Rotgin of Great Eastern Management Company

Developers were not pleased with the proposed changes. Chuck Rotgin of the Great Eastern Management Company said that he could not believe the County would even consider the amendments in an economic downturn that he said is the worst he’s ever seen. Rotgin said none of the members of the Board of Supervisors he had spoken to were aware of the Commission’s request. He acknowledged the Commission’s concern about the two existing PRDs, but said the proposed ordinances were an over-reaction.

“With respect to the two that are still out there, this is like taking a bazooka to kill a fly,” Rotgin said. He said applications submitted today contain intricate details, and applicants often do not expect to build out their plans fully for many years. He said that if applicants were required to prove that they have “diligently prosecuted final approvals” in order to remain vested then the definition must be made less subjective, especially in today’s economic climate where developers will likely wait until market conditions change.

“To burden developers with the obligation and responsibility of having to come back before [the Planning Commission] to try to convince this group that we have been diligently pursuing development of that plan I think is a major imposition,” Rotgin said.

Attorney Valerie Long, who represents several developers in the community, said that in her nine years working in this community, the level of detail required by County planners has increased dramatically. She said applicants are willing to spend the money to get approved, but when they do, they should expect to be able to build what the Commission and the Board of Supervisors have permitted. She said the proposed rules would not only burden applicants – staff would also have to spend time investigating applicants’ claims that they have a vested interest.

Don Franco of KG Associates said it took seven years to get Rivanna Village approved, and said he would hate to see all that work thrown “out the window” if a future Planning Commission passes new rules.

Morgan Butler of the Southern Environmental Law Center said he has been working with developers with the details of their application plans in order to make them more environmentally-friendly.

“We share the concern that there might be something put in place that would undermine all of the effort and time that went into getting those plans to the point where they were approved,” Butler said. He suggested that Commission and planning staff write the ordinance in such a way to only affect the two or three large planned districts that he said lack the level of detail required by contemporary applications.

Wendell Wood said owners of properties with older zonings have been paying property taxes based on the greater development potential for years, and it would not be fair to expect them to have to conform to new regulations. “I’d like to see zoning that’s been on the books be honored.”

Charlie Armstrong of Southern Development said that he thought the proposed ordinance change would give developers a disincentive to rezone to the Neighborhood Model or Planned Districts because of the uncertainty that he said would be brought to the equation.

County Zoning Administrator Amelia McCulley said it was her understanding that even under the proposed changes, the County could still not require off-site improvements. “If the concern is traffic impact, then we will have our hands tied even if this ordinance amendment is adopted because they’re still entitled and vested to X number of lots even if there was a traffic impact that wasn’t addressed in the original zoning action,” McCulley said. Albemarle County lost two lawsuits in 2005 related to attempts to deny developments for off-site traffic impacts.

Seated left to right: Deputy County Attorney Greg Kamptner, Director of Planning Wayne Cilimberg, Planning Commissioner Bill Edgerton

Commissioner Bill Edgerton (Jack Jouett) said that he welcomed the dialogue with developers, but said he was “put off” by the hostile tone he heard in their comments. “We’ve been struggling with a number of projects in recent years that the ordinance as written gives the development community the choice to do something by old standards versus the new standards, and the new standards are not necessarily trying to negatively impact development,” Edgerton said. “There are things that have happened since 1980 in our ordinance that have been for the protection of the citizens of Albemarle County and the community that have improved the process of development.”

But Rotgin responded that the long process to rezone property in Albemarle County has pushed projects outside of the community, resulting in a loss of tax revenue. “The delay in North Pointe getting approved has resulted in development occurring in the Ruckersville area,” Rotgin said. “I respect the community that you represent, but there’s another community out there which I would argue is much larger in terms of number that is suffering as a result of the business that has now bled outside of this community.”

Commissioner Eric Strucko (Samuel Miller) said other communities might be willing to have lower standards, but not Albemarle. “Maybe Waynesboro is willing to take that risk and deal with congestion and greater pollution and assume the revenue… but I think the concern here is to keep pace with the evolving standards of this community,” Strucko said. However, on this issue, Strucko encouraged staff to find a way to interpret the vesting standards to exempt certain development, but said that future Boards and Planning Commissions should have the right to implement their own standards.

Director of Planning Wayne Cilimberg said the intent of the ordinance change was not to allow the Commission to revisit proffers or anything else. Edgerton said he did not believe the ordinance was intended to revisit all recent rezonings. “The main reason for this was what seemed to us to be a loophole that was being taken advantage of by a few folks who were impacting negatively a lot of hard work that had occurred in recent years because of some stale zoning,” Edgerton said.

The Commission continued to debate the finer points of the ordinance before Chairman Morris called an end to the discussion. “I personally think we’ve gotten a very good start on the beginning of a good discussion here,” he said. Cilimberg said staff will explore ways to change the ordinance, possibly by setting a date before which developers would have to prove they are vested. The Commission then moved on to a discussion of ways to alter the County’s Comprehensive Plan to promote economic development.

Sean Tubbs

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Charlottesville Tomorrow

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