33A109_BPGPropertiesI81DistributionCntrAMENDMENT
Action:
PLANNING COMMISSION: September 17, 2008 - Recommended Approval
BOARD OF SUPERVISORS: September 24, 2008 Q APPROVED ❑ DENIED
AN ORDINANCE AMENDING
THE ZONING DISTRICT MAP
REZONING 405 -08 OF BPG PROPERTIES, LTDA -81 DISTRIBUTION CENTER
WHEREAS, Rezoning 905 -08 of BPG Properties, LTD./I -81 Distribution Center, submitted by BPG
Properties, Ltd., to rezone 59 acres from RA (Rural Areas) District to B3 (Business, hndustrial Transition)
District with proffers last dated September 17, 2008, for Office and Warehouse Uses was considered. The
properties are located approximately 0.61 miles north of the Route 11 intersection with Cedar Hill Road
(Route 671), bounded on the west by Interstate 81 and on the east by Martinsburg Pike (Route 1 1) in the
Stonewall Magisterial District and are identified by Property Identification Numbers 33 -A -109 and 33 -A-
110, in the Stonewall Magisterial District.
WHEREAS, the Planning Commission held a public hearing on this rezoning on August 6, 2008, and
a public meeting on September 17, 2008; and
WHEREAS, the Board of Supervisors held a public hearing on this rezoning on September 24, 2008;
and
WHEREAS, the Frederick County Board of Supervisors finds the approval of this rezoning to be in
the best interest of the public health, safety, welfare, and in conformance with the Comprehensive
Policy Plan;
NOW, THEREFORE, BE IT ORDAINED by the Frederick County Board of Supervisors that
Chapter 165 of the Frederick County Code, Zoning, is amended to revise the Zoning District Map to
change 59 acres from RA (Rural Areas) District to 133 (Business, Industrial Transition) District for
Office and Warehouse uses, subject to the attached conditions voluntarily proffered in writing by the
applicant and the property owner.
PDRes, 927 -08
This ordinance shall be in effect on the date of adoption.
Passed this 24th day of September, 2008 by the following recorded vote:
Richard C. Shickle, Chairman
Aye
Gary A. Lofton
Aye
Gary W. Dove
A y e
Bill M. Ewing
Aye
Gene E. Fisher
A y e
Charles S. DeHaven, Jr.
Aye
Philip A. Lemieux
Aye
A COPY ATTEST
9-V �
John R. kite , Jr.
Frederic County Administrator
PDRes. #27 -08
PROFFER STATEMENT
REZONING: RZ #07 -07 RA to B -3 (Industrial Transition)
PROPERTY: =59 Acres, Tax Map Parcel No.'s 33 -A -110; 33 -A -109
RECORD OWNER: Estate of Roy Riley Boyce Jr. and Kay Marie Boyce
APPLICANT: I3PG Properties, Ltd. and /or its assigns
PROJECT NAME: J -81 Distribution Center
PROFFER DATE:
REVISION DATE:
REVISION DATE:
REVISION DATE:
REVISION DATE:
.Tune 19, 2008
July 3, 2008
July 21, 2008
August 25, 2008
September 17, 2008
The undersigned hereby proffers that the use and development of the subject property
( "Property "), as described above, shall be in strict conformance with the following conditions,
which shall supersede all other proffers that may have been made prior hereto. In the event that
the above referenced rezoning is not granted as applied for by the applicant ( "Applicant "), these
proffers shall be deemed withdrawn and shall be null and void. Further, these proffers are
contingent upon final rezoning of the Property with "final rezoning" defined as that rezoning
which is in effect on the day following the last day upon which the Frederick County Board of
Supervisors' (the "Board ") decision granting the rezoning may be contested in the appropriate
court.
The headings of the proffers set forth below have been prepared for convenience of
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The term "Applicant" as referenced herein shall include within its
meaning all present and future owners and successors in interest.
The development of the Property shall be in general conformance with the plan entitled
"BPG Properties, Ltd., Frederick County, Virginia, Generalized Development Plan" dated June
19, 2008, (the "GDP "), subject to reasonable changes approved by the County in connection
with Master Development Plan and Final Site Plan review, including revisions required for final
engineering considerations, code and regulatory compliance, and revisions to parking layout and
the location of structures to accommodate the potential for multiple buildings on the Property.
The Applicant hereby proffers the following:
Land Use Restrictions
I.I. The Property shall be developed with not more than seven hundred fifty thousand
(750,000) square feet of permitted uses, as those uses are modified hereby, which
750,000 square feet and permitted uses shall be located entirely within one
building or within multiple buildings on the Property.
BPG Properties
Proffer Statement
Page 2 of 7
1.2. Office uses maybe employed on the Property only as accessory uses and shall be
located entirely within the structure(s) for the primary use(s). In no event shall
there be stand -alone office buildings on the Property.
1.3. The Applicant shall employ the yard and setback requirements for uses as provided
in the M1 District, rather than those otherwise applicable to the B3 District.
Proffered -Out Uses The following uses shall not be permitted on the Property.
2.1 Transportation By Air and all Uses Classified as SIC 45
2.2 Transportation Services, and all Uses Classified as SIC 47
2.3 Automotive Dealers and Gasoline Service Stations and all Uses Classified as SIC
55
2.4 Restaurant, except food services as may be provided to service employees on site
2.5 Amusement and recreation services operated indoors
2.6 Drive -in motion picture theaters
2.7 Local and suburban transit and interurban highway passenger transportation
2.8 Outdoor ad services
2.9 Automobile recovery service
2.10 Automotive repair, services and parking
2.11 Automobile repossession service
2.12 Product sterilization service
2.13 Repossession service
2.14 Automotive repair, services and parking
2.15 Building materials, hardware, garden supply, mobile home dealers and retail
nurseries, provided that this proffer does not exclude from the Property warehouse
facilities that store and distribute goods associated with these uses.
2.16 Food stores or groceries.
Transportation Mitigation
3.1. At the entrance to the Property, the Applicant will construct entrance
improvements consistent with Virginia Department of Transportation (VDOT)
requirements.
BPG Properties
Proffer Statement
Page 3 of 7
3.2. There shall be no more than one entrance to the Property. The first such entrance
shall be constructed along Route 1 I in the general location identified on the GDP
as the "Initial Entrance," which shall be separated at least 700' from the
intersection of Branson Spring Road and Route 11, unless otherwise approved by
Frederick County and VDOT.
3.3. The Initial Entrance shall be closed by the Applicant, at its expense, within thirty
(30) days after all of the following conditions have been met: i) an entrance to the
Property has been constructed by others in the general location identified on the
GDP as "Future Entrance" and ii) a right turn and deceleration lane meeting
VDOT requirements has been constructed by others into the Future Entrance.
The Applicant shall grant any necessary construction, grading and access
easements over the Property necessary for the construction of the Future Entrance
and an associated right turn lane into such Entrance, provided that the Applicant
expressly approves of the plans for improvements associated with the Future
Entrance, such approval not to be unreasonably withheld.
3.4. At such time as the Future Entrance is constructed as provided herein, the
Applicant shall close the Initial Entrance and shall pay fifty (50) percent of the
total audited costs incurred in constructing the Future Entrance to VDOT
standards, which may include signalization thereof, such payment not to exceed
$125,000.00. The "not to exceed" value of $125,000.00 is subject to the Escalator
Clause set forth below and represents the Applicant's estimate of fifty (50)
percent of the total costs of replacing the Initial Entrance and constructing a right
turn lane deceleration lane and traffic signal at the Future Entrance's intersection
with Route 11. The payment required by this Proffer 3.4 shall be used exclusively
for costs associated with improvements necessary for the issuance of a VDOT
entrance permit for the Future Entrance and shall be made to the party designated
by the Zoning Administrator for the construction of the Future Entrance upon
written demand of the Zoning Administrator and within thirty (30) days after the
following conditions have been met: i) the Future Entrance is opened for public
use, though not accepted into the State System of Secondary Highways, and ii)
the party responsible therefor provides the Zoning Administrator satisfactory
proof of its audited costs.
3.5. The Applicant shall grant an access easement over the Property to and for the
benefit of the adjoining parcel to the north of the Property to accommodate access
to the Future Entrance.
3.6. The Applicant shall enter into a signalization agreement for the Initial Entrance
with VDOT as a condition of final site plan approval.
3.7. The Applicant shall dedicate right -of -way along the Property's Route 11 frontage
that is ten (10) feet wide from the existing edge of right -of -way. Such dedication
shall be made prior to the approval of the first site plan for development of the
Property. The Applicant shall construct a ten (10) foot wide asphalt trail outside
BPG Properties
Proffer Statement
Page 4 of 7
of but adjacent to said right -of -way, and dedicate an easement to the County for
public purposes for such trail, drainage and grading improvements upon written
request by the County. The maintenance of the asphalt trial shall be the
responsibility of the owner of the Property or a property owner's association
created for such purpose, unless and until the County affirmatively assumes
maintenance of the trail in writing.
3.8. The Applicant will contribute to Frederick County the sum of Five Hundred Fifty
Thousand and 00 /100 Dollars ($550,000.00) to be used for improvements in the
Route 11 north corridor, payment to be made at the time of issuance of the first
building permit for a use on the Property. Such funds may be used by the Board
in its discretion for transportation improvements.
4. Fire and Rescue
The Applicant shall contribute the sum of Ten Thousand Dollars ($10,000.00) to
Frederick County at the time of issuance of the first building permit for the Property for use by
the Board in its discretion, for fire and rescue purposes.
5. Site landscaping
5.1. The Applicant shall provide a landscape strip within the area between the asphalt
trail identified in Proffer 3.7 and the parking area identified on the GDP that is a
minimum of ten (10) feet in width (the "Route 11 Buffer")., The Route 11 Buffer
shall be comprised of three street trees (per Zoning Ordinance §165-36.B.1, or
equivalent) per one hundred linear feet, and twenty -five shrubs per one hundred
linear feet. These plantings shall be in addition to those required by the County's
buffering and screening requirements. If no berm or hedgerow along the Route
11 frontage is otherwise required, the Applicant agrees to install a three foot berm
or hedgerow along the Route 11 frontage within the Route 11 Buffer.
5.2 The Applicant shall plant street trees (per Zoning Ordinance §165 - 36.13.1, or
equivalent) in the area between the rear parking area the Property's western
property line at a rate of no fewer than one tree per forty (40') linear feet.
6. Architectural
Facing materials of buildings facing Route I 1 and Interstate 81 shall be primarily of
concrete masonry unit, brick, architectural block, Dryvit or other simulated stucco, or real or
simulated wood or glass.
Site development requirements
7.1. All utilities will be underground.
7.2. Stormwater management facilities will be maintained by the Applicant.
BPG Properties
Proffer Statement
Page 5 of 7
7.3. Prior to the issuance of an occupancy permit for a building on the Property, the
Applicant shall construct a split rail fence no more than five feet in height along
the Property's Route 11 frontage in a location to be determined by the Applicant
in consultation with the County.
8. Deed
The Applicant proffers and agrees that any deed conveying the Property shall affix as an
attachment and incorporation into said deed, a full copy of these proffers in order to fully advise
any subsequent purchaser of these proffered terms and conditions.
9. Dedication of Right —of -Way for Branson Spring Road Extension.
Upon VDOT's approval of a functional plan for the extension of Branson Spring Road
through the Property in a location generally consistent with the current termination point of that
Road and parallel to the northern property line of the Property (the "Branson Spring Road
Extension "), the Applicant shall, upon written request from the County or VDOT, dedicate not
more than 100 feet of right -of -way from that property line to the County at no cost. No
additional landscaping, buffering or setbacks shall be required of the Applicant as a consequence
of such dedication.
10. Escalator
In the event the monetary contributions set forth in the Proffer Statement are paid to
Frederick County within eighteen (18) months of the approval of this rezoning, as applied for by
the Applicant, said contributions shall be in the amounts as stated herein. Any monetary
contributions set forth in this Proffer Statement which are paid to the County after eighteen (18)
months following the approval of this rezoning shall be adjusted in accordance with the Urban
Consumer Price Index ( "CPI -U ") published by the United States Department of Labor, such that
at the time contributions are paid they shall be adjusted by the percentage change in the CPI -U
from that date eighteen (18) months after the approval of this rezoning to the most recently
available CPI -U to the date the contributions are paid, subject to a cap of 6 percent (6 %) per
year, noncompounded.
[SIGNATURES AND NOTARIES APPEAR ON FOLLOWING PAGES]
BPG Properties
Proffer Statement
Page 6 of 7
BPG PROPERTIES, LTD.
By: BPG -GP, LLC its General Partner
By:
Name: Daniel M. DiLella, Jr.
Its: Vice President
STATE OF 401 uc,
COUNTY /EFT 1' O iiac(ongz,k , To -wit:
The foregoing instrument was acknowledged before me this JAay of
2008, by Daniel M. DiLella, Jr., as Vice President of
BP -GP, LLC, General Partner of BPG Properties, Ltd.
NOTARY PUBLIC
My cormnission expires: Gz 't '"w 3(, A611
Registration Number: )38a40
[SIGNATURE AND NOTARY APPEAR ON FOLLOWING PAGE]
BPG Properties
Proffer Statement
Page 7 of 7
ESTATE OF ROY RILEY BOYCE, JR.
By: Ct
Name: Kay M. Bo cc
Title: Executor
Kay Marie B yce
STATEOF V�pr� - A
C-ObN+Y /CITY OF u me i+es-rcT , To-wit:
The foregoing instrument was acknowledged before me this r / day of
,S-ir,- C 2008, by Kay M. Boyce as Executor of the Estate of Roy
Riley Boyce, Jr.
NOTARY PUBLIC
M commission expires: ,//�� it&'Uz r ! .JGC3 VLORETTA M. WILSON
y p ly � Notary Public
mmonwealth of Virginia
Reg. X363036
ReglStTatlOn Nllmber: H d mmission Exps. Aug. 31, 2609
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