54A88_TopOfVirginiaDevelopmentCorpC
COUNTY of FREDERICK
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AMENDMENT
FREDERICK COUNTY ZONING
Department of Planning and Development
703/665 -5651
FAX 703/667 -0370
Approvals:
Planning Commission Approved on
Board of Supervisors p�p2aved of
4, 1990 with proffers
An ordinance amending the zoning district map for application #012-
89 of Top of Virginia Development Corp.
WHEREAS, Rezoning application 012 -89 of Top of Virginia Development
Corp to rezone 211.04 acres from RA (Rural Areas) to RP
(Residential Performance), located two miles northeast of
Winchester, just north of Va. Rt. 7, located south and adjacent to
Va. Rt. 661 and east and adjacent to US I -81, in the Stonewall
Magisterial District and designated as property ID# 54000- A00 -0000-
0000- 0088 -0 , was referred to the Planning Commission on August 2,
1989; and
WHEREAS, the Planning Commission held a public hearing on this
application on August 2, 1989 and;
WHEREAS, the Planning Commission received a draft statement of
conditions proffered prior to the public hearing; and
WHEREAS, the Board of Supervisors held a public hearing on this
application on May 9, 1990; and
WHEREAS, the Board of Supervisors received a signed statement of
conditions proffered prior to the public hearing; and
WHEREAS, the Frederick County Board of Supervisors finds this
rezoning to be in the best interest of the public health, safety,
welfare, convenience and good zoning practice;
THEREFORE, ORDAINED by the Frederick County Board of Supervisors
as follows:
That Chapter 21 of the Frederick County Code, Zoning Ordinance, is
amended to revise the Zoning District Map to change 211.04 acres
from RA (Rural Areas) to RP (Residential Performance located two
miles northeast of Winchester, just north of Va. Rt. 7, located
south and adjacent to Va. Rt. 661 and east and adjacent to US I -81
in the Stonewall Magisterial District and designated by property
ID# 54000 -A00- 0000 - 0000 - 0088 -0, as described by the application
and plat submitted, subject to the following conditions voluntarily
proffered in writing by the applicant and property owner as
follows:
9 Court Square P.O. Box 601 Winchester, Virginia 22601
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This ordinance shall be in effect upon its passage.
Passed this 9th day of May, 1990.
& Copy g[este
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May 9, 1990
PROFFERS
CALEB HEIGHTS REZONING APPLICATION
1. Preliminary matters.
Pursuant to Section 15.1 -491.1 et sea. of the Virginia
Code Annotated, and the provisions of the Frederick County
Zoning Ordinance with respect to conditional zoning, the
undersigned Applicant hereby proffers that in the event the
Board of Supervisors of Frederick County, Virginia, shall
approve Rezoning Application Number 012 -89 for the rezoning
of 211 acres from the A -2 Zoning District to the RP Zoning
District, ( "the subject property "), development of the
subject property shall be done in conformity with the
Frederick County Zoning and Subdivision Ordinances, and in
substantial conformity with the terms conditions set forth
herein, except to the extent that such terms and conditions
may be subsequently amended or revised by the Applicant, and
such be approved by the County in accordance with Virginia
law. In the event that such rezoning is not granted, then
these proffers shall be deemed withdrawn and of no effect
whatsoever. These proffers shall be binding upon the
Applicant, or its legal successors and assigns.
2. Generalized Development Plan.
The development of the subject property, and the
submission of any Master Development Plans therefor, shall
• be in substantial conformity with the Generalized Development
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Plan which is attached hereto and incorporated herein by
reference.
3. Phasing of Development.
In order that the County may be able reasonably to
anticipate the pace of development on the subject property,
a phasing plan shall be submitted during the Master
Development Plan process, in accordance with the Frederick
County Zoning Ordinance. Phasing as shown on the said Master
Plan shall be accomplished such that not more than fifteen
per cent (150) of the total permitted dwelling units, in any
combination of single- or multi - family units, may be
• constructed in any one year; provided, however, that this
figure shall be cumulative, and any number of such units not
constructed in any given year, may be constructed in later
years, plus in any year an additional five per cent (5 %) of
such units in years after December 31, 1991.
4. Transportation.
.A. The Applicant shall design and construct all roads
on the subject property consistently with the County's
adopted thoroughfare plan for the area, and according to
uniform standards established by the Virginia Department of
Transportation (VDOT), and as may be provided in these
proffers.
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B. (1). The Applicant proffers that it shall design
and construct a two lane road from the southern edge of its
property to a satisfactory connection to existing Regency
Lakes Drive, generally at the location designated as
"Interparcel Connector" on the Generalized Development Plan,
for ultimate inclusion in the State System of Secondary
Highways. It shall construct such road only provided that
dedicated right -of -way for such extension has been made
available by others. In the event that either the Frederick
County Board of Supervisors, or the Virginia Department of
Transportation, determines to exercise its powers of eminent
domain to acquire right -of -way sufficient to the purposes
® hereof, however, the Applicant agrees to advance or reimburse
to either agency the costs of the exercise of such power,
including reasonable attorneys' fees and engineering costs,
and the cost of the condemnation itself, in order to obtain
the right -of -way necessary to construct the roadway agreed
to under this proffer.
(2) . The Applicant further agrees that the said
Interparcel Connector shall be the first section of the road
network providing primary access to the subject property to
be constructed, provided that the right -of -way necessary for
the construction thereof shall have been made available in
accordance with the terms of this proffer not later than
January 1, 1991.
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C. (1). In order to assist in the provision of an
ultimate four lane undivided collector road from State Route
661 south to Route 7, as generally shown on the County's
adopted thoroughfare plan, and in the area designated as
"Major Collector 80' Right -of -Way" on the Generalized
Development Plan, the Applicant shall dedicate the right-
of-way necessary for two lanes of an ultimate four lane Major
Collector Road between indicators B and C as shown on the
said Plan. At such time as the Virginia Department of
Transportation approves final design for any portion of such
Collector Road, the Applicant shall contribute the reasonably
estimated costs of construction of one lane of such Major
® Collector. The Applicant shall access such Major Collector
by its Local Collector Road in the location generally shown
on said Plan.
(2). The Applicant shall further dedicate all of
the necessary right -of -way for the aforesaid four lane
undivided collector road between indicators C and D as shown
on the Generalized Development Plan, where the right -of -way
for such proposed collector runs entirely through the subject
property. The Applicant agrees that it shall construct two
lanes of the ultimate four lane right -of -way between those
two points, to VDOT standards.
(3). The phasing of dedication and construction
of the roadway located between indicators C and D on the
• Generalized Development Plan shall be accomplished as part
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of the consideration of a Master Development Plan for the
subject property.
(4). The Applicant shall construct a Local
Collector Road in the location identified on the Generalized
Development Plan, to provide temporary access to the property
and to the Major Collector Roadway from State Route 661. It
shall insure that all roads internal to the subject property
will be designed to serve compatibly with the Major Collector
Roadway.
(5). The Applicant shall not be responsible for
the construction of any other portion of the Major Collector,
than is set out herein.
• (6).
In
order
to avoid proliferation of entrances
on State Route
661,
when
the aforesaid Major Collector Road
has been constructed to State Route 661 and has been accepted
into the State System of Secondary Highways, the Applicant
agrees that it shall initiate the necessary legal steps, in
conjunction with the County and VDOT, to close any through
traffic from the Local Collector directly onto State Route
661, and to redirect such traffic from within the property
onto the Major Collector Road at a suitable access point.
Nothing contained herein shall prohibit the Applicant from
providing suitable and customary access from State Route 661
to the ten acre remainder parcel located adjacent to State
Route 661, and shown on the Generalized Development Plan,
provided that that access (except for emergency traffic) is
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not permitted to the Local Collector once it has been closed
to through traffic.
5. Environmental considerations.
A. Existing live trees with a trunk diameter greater
than six inches shall be preserved to the maximum extent
possible, through restrictive covenants of record,
consistently with the physical location of dwellings, and
except as may be necessary to construct roads, or sewers,
water lines or other utilities or required infrastructure.
B. The Applicant agrees that it shall employ all
reasonable Best Management Practices in connection with the
• development of the subject property.
C. Despite its belief that construction on the subject
property will have no detrimental effect on Redbud Run, the
Applicant agrees that prior to initiation of any construction
on the subject property, it shall obtain baseline data as to
the existing water quality in the Run from a person, company,
or agency, approved by the Director of Planning and
Development for Frederick County, and shall thereafter
monitor the water quality in the Run semi - annually, and
report the findings of such monitoring to the County. In the
event that the Director of Planning determines that
development of the subject property has directly caused
degradation in the water quality of the Run, below the
baseline data acquired hereunder, the Applicant shall
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immediately mitigate such degradation in accordance with
engineering reports identifying the resolution thereof, and
shall continue to do so for so long as the applicant is
engaged in any development activity on the subject property.
D. The Applicant shall further comply with the lawful
requirements of the Frederick County zoning Ordinance
pertaining to the protection of the environment.
6. Maximum permitted density.
The overall density of the development of the subject
property shall not exceed three and three tenths (3.3)
dwelling units per gross acre; and provided further that
maximum density shall not exceed two and two tenths (2.2)
dwelling units per gross acre in the area of the subject
property identified on the Generalized Development Plan as
Area A, and eight units per gross acre on the area of the
subject property identified thereon as Area B. only single
family dwellings shall be constructed in Area A, and only
townhouses shall be constructed in Area B.
7. Monetary Contribution to Offset Impact of Development on
Schools.
The Applicant shall pay to the County's General Fund the
sum of $2,200, for each lot or parcel which is approved for
development with a single family dwellings, and $1,200, for
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each lot or parcel which is approved for development with
townhouses. Payment of such sums shall be made at the time
of recordation of a final subdivision plat for any portion
of the subject property, either in cash, or in the form of
a non - interest bearing note, for the per -lot sums owing,
payable to Frederick County, Virginia, and made payable in
twelve months from the date of recordation of said final
subdivision plat. The obligor shall have the right to prepay
prior such note to the due date thereof. Such payment shall
be made for the sole and express purpose of implementing the
provisions of the currently adopted Frederick County Capital
Improvements Plan with respect to school construction costs
• in the general vicinity of the subject property.
In the event that the money proffered hereunder is not
used for the purpose for which proffered within ten years
from the date this rezoning is approved, it shall be refunded
on demand to the Applicant, or such other entity or person
as may have made any payment provided for herein, with
interest accrued at the rate of 8% per annum from the date
the first such payment is made.
8. Historic Preservation.
A. The Applicant shall dedicate to the appropriate
public or private agency or authority, in fee simple
absolute, those areas identified on the Generalized
Development Plan as Historic Preservation Areas, provided
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that it shall retain the necessary rights -of -way,
dedications, easements, and permissions required to construct
roads, sewers, water lines and other necessary infrastructure
within those preservation areas, as they may be required for
the development of the subject property and approved in a
Master Development Plan.
B. All infrastructure other than roads shall be located
underground, and any land area disturbed during construction
shall be restored to its original condition after
construction is finally completed. The Applicant shall
provide suitable buffering and landscaping along any road
which may be constructed, compatible with the historic
• preservation purposes of this proffer, and approved by the
Director of Planning and Development as being in accord
herewith and with the standards established in the Frederick
County Zoning Ordinance.
C. Historic signage of a kind similar to that used by
the Commonwealth of Virginia to mark historic places shall
be placed in locations satisfactory to the Frederick County
Historic Resources Advisory Board.
D. Notwithstanding any other provision of these
proffers, the Applicant agrees that it will not commence
construction of any kind on the subject property prior to
January 1, 1991. Nothing contained herein shall preclude the
applicant from preparing and submitting plans for development
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of the subject property prior to such date, nor shall it
preclude review thereof by appropriate public agencies.
E. The Applicant further agrees that at any time prior
to January 1, 1991, it will enter into good faith
negotiations for the purchase of the subject property with
any ready, willing, and able party or parties whose bona fide
purpose is to acquire the subject property for the creation
of a park, open to the general public, to commemorate the
Battle of Third Winchester. The subject property shall be
offered at fair market value, as that value is determined by
a qualified MAI certified real estate appraiser acceptable
to both the Applicant and Frederick County. No such offer
• shall be accepted unless settlement is provided to occur
within ninety days following receipt of a bona fide offer as
provided herein, or such other time as the Applicant may
agree to.
F. The applicant agrees that it shall so phase the
development of the subject property that the portion thereof
located between what are known as the Huntsberry and Nash
properties, and which is generally identified
on the Generalized
Development Plan, shall be the last portion of the subject
property to be developed. If, prior to the submission of
subdivision plats for approval for that section of the
subject property, any ready, willing, and able party or
parties whose bona fide purpose is to acquire the subject
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property for the creation of a park, open to the general
public, to commemorate the Battle of Third Winchester,
indicates that it desires to enter into good faith
negotiations for the purchase of that portion of the subject
property, it shall be offered to such party at fair market
value, as that value is determined by a qualified MAI
certified real estate appraiser acceptable to both the
Applicant and to Frederick County. No such offer shall be
accepted unless settlement is provided to occur within ninety
days following receipt of a bona fide offer as provided
herein, or such other time as the Applicant may agree to.
G. The Applicant agrees that it shall dedicate to the
• public, or otherwise reserve and make available for public
use, an eight foot (8 pathway along the frontage road
bordering the Huntsberry property, in order to connect
potential future park areas by an appropriate walking trail,
as shown on the Generalized Development Plan.
9. Contributions to Fire and Rescue Services.
A. The applicant agrees that it shall donate the sum
of $100.00 for fire and rescue service purposes, for each
dwelling unit constructed on site, such donation to be made
at the time of recordation of a final subdivision plat for
any portion of the subject property, either by cash or check.
B. All of the aforesaid contribution shall be made to
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the Clearbrook Fire Hall, Stonewall District; provided, that
in the event a fire and or rescue station is hereafter
constructed which assumes the responsibility of providing
service to the subject property, and further contributions
are yet remaining to be made in accordance with this proffer,
asuch contributions shall be made to that station.
C. The Applicant further agrees that no later than
August 1, 1990, it will provide the additional sum of $10,000
in cash to the Clearbrook Fire Hall, to be used for
downpayment on a currently required rescue squad vehicle.
The Applicant further agrees that it shall contribute the
further sum of $5,000 in cash on each of August 1st of 1991,
• and 1992, for application to the purchase of the said rescue
vehicle.
10. Limitation on submission of subdivision plats.
The Applicant agrees that it shall not submit for
approval any subdivision plat for the Subject Property, nor
shall the County be obligated to review or approve any such
plat, until such time as the Director of Planning certifies
that there is access to the Property from Route 7 then
existing or to be available within a reasonable period of
time.
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STATE OF VIRGINIA
) to -wit:
J
COUNTY OF ree EltiQk )
I, a Notary Public in the State and County aforesaid,
do hereby certify that Dave Holliday, President of Top of
Virginia Development Corporation, and who is authorized to
act on behalf of said Corporation, whose name is signed to
the foregoing, has personally acknowledged the same before
me in my jurisdiction aforesaid.
Given under my hand and seal this 9th day of May, 1990.
My Commission Expires:
�I.: x;77 El9IC5 �i(C hEr li. 19 51
Nota y Pu lic
JHF2:proffers.001
TOP OF VIRGINIA DEVELOPMENT
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