33A109_BPGPropertiesRevisionRESOLUTION
Action:
PLANNING COMMISSION: May 16, 2012 - Recommended Approval
BOARD OF SUPERVISORS: May 23, 2012 W APPROVED ❑ DENIED
AN ORDINANCE AMENDING
THE ZONING DISTRICT MAP
REZONING 405-12 PROFFER REVISION OF BPG PROPERTIES
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WHEREAS, Rezoning 905-12 Proffer Revision of BPG Properties, to revise the proffers associated
with Rezoning #05-08 relating to the "Transportation Mitigation" section of the proffers, was considered.
The proffer, originally dated September 24, 2008, and amended May 18, 2012, is intended to allow for the
possibility of multiple users on the site, which was previously not envisioned. The properties are located
approximately .61 miles north of the Route 11 intersection with Cedar Hill (Route 671), bounded on the
west by Interstate 81 and on the east by Martinsburg Pike (Route 11), in the Stonewall Magisterial District,
and are identified by Property Identification Numbers 33-A-109 and 33-A-110.
WHEREAS, the Planning Commission held a public hearing on this rezoning on May 16, 2012 and
forwarded a recommendation of approval; and
WHEREAS, the Board of Supervisors held a public hearing on this rezoning on May 23, 2012; 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 proffers concerning
Rezoning #05-08. The proffer revision is intended to allow for the possibility of multiple users on the
site, which was previously not envisioned, as described by the application and attached conditions
voluntarily proffered in writing by the applicant and the property owner.
PDRes. # 17-12
This ordinance shall be in effect on the date of adoption.
Passed this 23rd day of May, 2012 by the following recorded vote:
Richard C. Shickle, Chairman Aye Gary A. Lofton Aye
Ross P. Spicer Aye Bill M. Ewing Aye
Gene E. Fisher Aye Charles S. DeHaven, Jr. Aye
Christopher E. Collins Aye
A COPY ATTEST
1/
JoWR.'Riley, Jr.
Frederick County Administrator
viRG1N1A:ER. DERICKCOUNfY.SCP.
This instrument of writing was produced to me of,
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and with certif icate aam cFdg,!ment thereto annexed
was admitted to record. Tax imposed by Sec. 58.1-802 of
$ /_+ ® , and 58.1-801 have been paid, if assessable
PDRes. # 17-12
Iq O05897
AMENDED PROFFER STATEMENT
REZONING: Proffer Amendment #05-12
Amending proffers associated with RZ #05-08, Rezoning to B-3
PROPERTY: ±59 Acres, Tax Map Parcel No.'s 33-A-109; 33-A-110
RECORD OWNER: Frederick County Investors, LLC
APPLICANT:
PROJECT NAME:
BPG Properties, Ltd.
I-81 Distribution Center
DATE OF APPROVAL OF ORIGINAL PROFFERS: September 24, 2008
AMENDED PROFFER SUBMISSION: May 18, 2012
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 con-
tingent 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 Super-
visors' (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 ref-
erence 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 Feb-
ruary 9, 2012 (the "GDP"), prepared by Triad Engineering, Inc., subject to reasonable changes
approved by the County in connection with Master Development Plan and Final Site Plan re-
view, 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:
1. 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 build-
ing or within multiple buildings on the Property.
Amended Proffer statement Proffer 01 (P0258602-3)
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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 Ml District, rather than those otherwise applicable to the B3 District.
2. 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 Building materials, hardware, garden supply, mobile home dealers and retail nurse-
ries, provided that this proffer does not exclude from the Property warehouse facil-
ities that store and distribute goods associated with these uses.
2.15 Food stores or groceries.
3. Transportation Mitigation.
3.1. At the entrance to the Property, the Applicant will construct entrance improve-
ments consistent with Virginia Department of Transportation (VDOT) require-
ments.
3.2. There shall be no more than two entrances to the Property. The first such en-
trance shall be constructed along Route 11 in the general location identified on the
GDP as the "Initial Entrance," which shall be separated at least 700' from the in -
Amended Proffer Statement Proffer 01 (P0258602-3)
CD
tersection of Branson Spring Road and Route 11, unless otherwise approved by
Frederick Courity and VDOT. The second such entrance (the "South Entrance")
shall be located at the south end of the Property as depicted on the GDP
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 ease-
ments over the Property necessary for the construction of the Future Entrance and
an associated right turn lane into such Entrance, provided that the Applicant ex-
pressly approves of the plans for improvements associated with the Future En-
trance, such approval not to be unreasonably withheld.
3.4. At such time as the Future Entrance is constructed as provided herein, the Appli-
cant shall close the Initial Entrance and shall pay fifty (50) percent of the total au-
dited 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) per-
cent of the total costs of replacing the Initial Entrance and constructing a right
tum 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 en-
trance 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 follow-
ing 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 parcels to the north and south of the Property to accom-
modate access to the Future Entrance and to the South 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
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 responsi-
Amended Proffer statement Proffer 01 (P0258602-3)
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bility 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) subject to the escalation clause con-
tained in these Proffers, to be used for improvements in the Route 11 north corri-
dor. Such payment shall be made at the time of issuance of each building permit
for a use on the Property, and each such payment shall be in proportion to the
square footage of the proposed construction bears to the 750,000 square feet of
building authorized hereunder. Such funds may be used by the Board in its dis-
cretion for such transportation improvements.
4. Fire and Rescue.
The Applicant shall contribute the sum of Ten Thousand Dollars ($10,000.00) to Freder-
ick 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.B.1, or
equivalent) in the area between the rear parking area the Property's western prop-
erty line at a rate of no fewer than one tree per forty (40') linear feet.
6. Architectural.
Facing materials of buildings facing Route 11 and Interstate 81 shall be primarily of con-
crete masonry unit, brick, architectural block, Dryvit or other simulated stucco, or real or simu-
lated wood or glass.
Site development requirements.
7.1. All utilities will be underground.
7.2. Stormwater management facilities will be maintained by the Applicant.
7.3. Prior to the issuance of an occupancy permit for a building on the Property, the
Amended Proffer Statement Proffer 01 (P0258602-3)
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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 Ex-
tension"), 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 addi-
tional 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 contri-
butions 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 avail-
able 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]
Amended Proffer Statement Proffer 01 (P0258602-3)
Owner:
FREDERICK COUNTY INVESTORS, LLC
By;
Name: DanielDiLella, Jr.
Its: I/ ;te_PKZ' —
STATE OF�X�
COUNTY/CITY OF _ems tc� To -wit:
The foregoing instrument was aclmowledged before me this /qday of
yYt�y 2012, by Daniel M. DiLella, Jr., as V. /'- of Fred-
�, LLC.
' ' I'MIAL SEAL
CATHERINE T SIMpSON
NEMyFoyNNotaryT DELAWARE a
IY CammEaa6an Elwk" r ..
My commission expires:
Registration Number:
/'z�)F76Y
Amended Proffer statement Proffer 01 (P0258602-3)
NOTARY PUBLIC
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Applicant:
BPG PROPERTIES, LTD.
By: BPG-GP, , its General Partner
By:
Name
Its:
Daniel M. DiLella, Jr.
Vice President
STATE OF 4'
COUNTY/CITY OFA &' ' &QLg, To -wit:
The foregoing instrument was acknowledged before me this /ffday of
Y] cac/ 2012, by Daniel M. DiLella, Jr., as Vice President of
BPG Properties, Ltd.
CATHERINE T SW 20N
Noury Publk
NEWTOWN TW, DELAWARE MY
f4 CommlWon E*r#s Nov 3, 2O14
My commission ,e/xpires:
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Registration Number:
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Amended Proffer Statement Proffer 01 (P0258602-3)
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