068-09RESOLUTION
Action:
BOARD OF SUPERVISORS: May 27, 2009 APPROVED DENIED
x
Chapter 165, Zoning, Article II, Conditional rezoning
Revision to add "Legal form of proffer statement" and
a requirement for the Recordation of Proffers to §165 -13
WHEREAS, the Frederick County Planning Department has been directed to prepare
modifications to Chapter 165, Zoning, Article II, Conditional rezoning, pertaining to the
addition of a requirement for the legal form of proffer statements and the recordation of
proffers.
WHEREAS, The Development Review and Regulations Committee (DRRC)
recommended approval of this amendment on February 26, 2009; and
WHEREAS, the Planning Commission discussed the draft ordinance on May 6, 2009;
and recommended that a public hearing be held;
WHEREAS, the Frederick County Board of Supervisors finds that in the . public
necessity, convenience, general welfare, and good zoning practice, directs the Frederick
County Planning Commission hold a public hearing regarding amendments to Chapter
165, Zoning, Article II, Conditional rezoning, pertaining to the addition of a requirement
for the legal form of proffer statements and the recordation of proffers.
NOW, THEREFORE, BE IT REQUESTED by the Frederick County Board of
Supervisors that the Frederick County Planning Commission shall hold a public hearing
to consider revisions to Chapter 165, Zoning, Article II, Conditional rezoning,
pertaining to the addition of a requirement for the legal form of proffer statements
and the recordation of proffers.
Passed this 27th day of May, 2009 by the following recorded vote:
This resolution was approved by the following recorded vote:
Richard C. Shickle, Chairman Aye Gary A. Lofton Aye
Gary W. Dove Aye Bill M. Ewing Aye
Gene E. Fisher Aye Charles S. DeHaven, Jr. Aye
Philip A. Lemieux Aye
A CORY ATTAST
J
County Administrator
BOS Res. #068 -09
COU NTY of F
I �'4, ® I
1 W ffi Department of Hanning and Development
® ® MEMORANDUM 5401665 -5651
738
.,Q FAX: 540/665 -6395
1736
To: Frederick County Board of Supervisors
From: Candice E. Perkins, AICP, Senior Planner
Subject: Board of Supervisors Discussion — Recordation of Proffers
Bate: May 19, 2009
Currently, the Zoning Ordinance does not contain standards as to how proffer statements should be
written and does not require that proffers be recorded once accepted by the Board of Supervisors. It
was requested that staff develop an ordinance that addresses these items. Specifically, the
recordation requirement has been developed due to concerns expressed regarding proffers not
showing up when title searches are performed on properties. Staff has prepared a revision to the
ordinance that contains requirements for the legal form of proffer statements and a requirement that
approved proffers be recorded with the Frederick County Clerk of the Circuit Court. The proposed
additions to the ordinance are as follows:
§165 -13. Conditional rezoning.
D. Legal form of proffer statement.
(1) All proffers shall be in writing and shall be in a form suitable for recordation in
the land records of Frederick County.
(2) The proffer statement shall define the owners of the subject property and shall be
signed by all parties involved.
E. Recordation of Proffers. If the Frederick County Board of Supervisors approves proffered
conditions as part of a rezoning, the Zoning Administrator or County Attorney shall,
within ten (10) days of the Board's actions, present the written proffer to the Frederick
County Clerk of the Circuit Court for recordation.
The item was presented to the Development Review and Regulations Committee (DRRC) at their
meeting on February 26, 2009. The DRRC expressed concerns over proposed title requirements that
were included with the initial version. The proposed ordinance was revised to remove the title
requirements, the revisions were emailed to the DRRC, and the changes were endorsed by the group.
The revised text includes requirements for the legal form of proffer statements as well as a
requirement for the recordation of proffers. The Planning Commission discussed this item at their
meeting of May 6, 2009. The Planning Commission supported the text amendment because it would
aid in creating a tracking system for proffers when properties are transferred. Staff would note that
one comment was received after the Planning Commission meeting regarding the ten day
requirement to the potential for a rezoning to be appealed. Staff would note that if a party were to
107 North Kent Street, Suite 202 - Winchester, Virginia 22601 -5000
appeal a rezoning, they could provide the County with an injunction to delay the recordation. If the
rezoning was successfully appealed after the proffers had been recorded, a statement repealing the
proffer statement would then be recorded.
This proposed text amendment is being presented to the Board as a discussion item. If the Board
believes the amendment is appropriate, the staff will schedule a public hearing. Staff is seeking
comments and direction from the Board of Supervisors on this Zoning Ordinance text amendment;
attached is a resolution directing the item to public hearing should the Board deem it appropriate.
Attachment: 1. Proposed Ordinance Revision ( §165 -13)
2. Resolution
CEP/hhd
ARTICLE H
Amendments
[Amended 6 -13 -1990]
§ 165 -13. CondEuonal rezoning.
ATTACHMENT 1
The applicant for a rezoning may proffer in writing before the public hearing by the Board of
Supervisors conditions to be placed on the approval of the rezoning.
A. Procedures. Proffers shall be presented to the Planning Commission at the advertised public
hearing for the rezoning. The Planning Commission shall make a recommendation on the
acceptance of the proffers and the rezoning to the Board of Supervisors following the
procedures described for amendments to this chapter. Final proffers shall be received in writing,
signed by the owner and applicant, at least five (5) days prior to the advertised hearing of the
Board of Supervisors.
B. Proffer Standards. The conditions proffered shall meet the following standards.
(1) The rezoning itself must give rise to the need for the conditions.
(2) Such conditions- shall have a reasonable relation to the rezoning.
(3) All conditions shall be in conformity with the Comprehensive Plan.
C. Types of proffers. The types of conditions proffered shall include but need not be
limited to the following:
(1) Limitation on the use of the land.
(2) Limitations on the type of housing provided.
(3) Limitations of the size or locations of buildings or structures.
(4) Limitations on the density or intensity of the use.
(5) Conditions on the appearance or maintenance of structures or uses.
(6) Conditions preventing smoke, odors, fumes, dust, noise, traffic congestion or
flooding.
(7) Conditions or limitations on the location and nature of entrances and
driveways.
(8) Conditions concerning the number, location and design of parking and
loading spaces.
(9) Landscaping provisions.
(10) Provisions concerning outdoor storage and processing.
(11) Building height limitations.
(12) Provisions for stormwater management and environmental protection.
(13) Preservation and protection provisions for trees, woodland, streams or other
natural features.
(14) On -site or off -site sewer or water improvements.
(15) On -site or off -site drainage improvements.
(16) On -site or off -site road, entrance or driveway improvements.
(17) A particular master development plan or plan features or site layout features.
(18) Preservation of historic structures and sites located on the land to be rezoned.
(19) Buffer, screening and separation features.
(20) Requirements concerning the phasing or timing of development.
(21) The dedication of land for planned roads or for facilities identified in the
Frederick County Capital Improvements Plan.
(22) The construction of planned roads or necessary road improvements.
(23) The construction of facilities identified in the Frederick County Capital
Improvements Plan.
(24) Cash contributions for road improvements or for planned facilities identified
in the Frederick County Capital Improvements Plan. _
(25) Other conditions used to lessen or mitigate the impacts identified in the
impact analysis.
D. Legal form of proffer statement:
(1) All proffers shall be in writing and shall be in a form suitable for recordation in the
land records of Frederick County.
(2) The proffer statement shall define the owners of the subject property and shall be
signed by all parties involved
E. Recordation of Proffers. If the Frederick County Board of Supervisors approves proffered
conditions as part of a rezoning, the Zoning Administrator or County Attorney shall, within
ten (10) days of the Board's actions, present the written proffer to the Frederick County Clerk
of the Circuit Court for recordation.
F.D. Amendment of conditions. Once accepted and adopted by the Board of Supervisors,
such conditions may only be changed through the procedures required for ordinance
amendments as described by this section.
G. E-- Enforcement of conditions. The Zoning Administrator shall keep records of all conditions
attached to rezoni.ngs, which shall be readily accessible to the public. The Zoning Map shall
show by appropriate symbol the existence of conditions accepted for rezonings. In addition, the
Zoning Administrator shall maintain a conditional zoning index which shall provide for ready Y
access to the conditions created. Failure to meet all conditions shall constitute cause to deny the
issuance of building or occupancy permits. The Zoning Administrator shall enforce the
conditions attached to the rezoning using the following means:
(1) The ordering in writing of the remedy of any noncompliance with such
conditions.
(2) The bringing of legal action to ensure compliance with such conditions,
including injunction abatement or other appropriate actions.
(3) The requiring of a guaranty, satisfactory to the Board of Supervisors, in an
amount sufficient for the construction of any improvements required by the
conditions or a contract for the construction of such improvements. The
applicant's guaranty shall be reduced or released by the Zoning Administrator
upon the completion, in whole or in part, of such improvements.