HomeMy WebLinkAboutPC 11-05-14 Meeting Agenda AGENDA
FREDERICK COUNTY PLANNING COMMISSION
The Board Room
Frederick County Administration Building
Winchester, Virginia
November 5, 2014
7:00 P.M. CALL TO ORDER TAB
1) Adoption of Agenda: Pursuant to established procedures, the Planning Commission
should adopt the Agenda for the meeting ............................................................................. (no tab)
2) October 1, 2014 Minutes............................................................................................................... (A)
3) Committee Reports ............................................................................................................... (no tab)
4) Citizen Comments ............................................................................................................... (no tab)
PUBLIC HEARING
5) Rezoning #04-14 Baker and Lepley properties, submitted by Lewis and Melissa Baker, Fred
and Alice Baker, and Krista Lepley to rezone 8.59+/- acres from the MH1 (Mobile Home
Community) District and RA (Rural Area) District to the RA (Rural Area) District. The
properties are located on Sinking Springs Lane in Gore (travel Route 50 West approximately 15
miles to Gore Road on left; continue .5 miles on Gore Road to Sinking Spring Lane on the left).
The properties are identified by Property Identification Numbers 28-A-75, 28-A-76, and 28-A-82
in the Back Creek Magisterial District.
Mrs. Perkins ................................................................................................................................ (B)
6) Conditional Use Permit #03-14 for Caroline E. Watson, for in Home Child Care. This
property is located at 215 Westmoreland Drive in Stephens City (travel Interstate 81 South to
exit 307 Stephens City, take a left onto Fairfax Pike, left on Aylor Road and turn right onto
Westmoreland Drive). The property is identified with Property Identification Number 75E-1-3-
165 in the Opequon Magisterial District.
Mr. Cheran .................................................................................................................................... (C)
7) Rezoning #02-14 Heritage Commons, L.L.C., submitted by Lawson and Silek, P.L.C., to
rezone 96.28+/- acres from BS (Business General) District to R4 (Residential Planned
Community) District and 54+/- acres from RP (Residential Performance) District to R4
(Residential Planned Community) District and .31+/- acres from the RA (Rural Areas) District to
the R4 (Residential Planned Community) District with proffers. The properties are located west
of the intersection of Front Royal Pike (Route 522) and Airport Road (Route 645) and are
identified by the Property Identification Numbers 63-A-150, 64-A-10, and 64-A-12 in the
Shawnee Magisterial District.
Mrs. Perkins .................................................................................................................................. (D)
8) Other
Adjourn
Commonly Used Planning Agenda Terms
Meeting format
Citizen Comments – The portion of the meeting agenda offering an opportunity for the public to provide
comment to the Planning Commission on any items not scheduled as public hearing items.
Public Hearing– A specific type of agenda item, required by State law, which incorporates public comment as a
part of that item prior to Planning Commission or Board of Supervisors action. Public hearings are held for
items such as: Comprehensive Plan policies and amendments; Zoning and Subdivision Ordinance
amendments; and Rezoning and Conditional Use Permit applications. Following the Public Hearing, the
Planning Commission will take action on the item (see below).
Action Item–There are both public hearing and non‐public hearing items on which the Planning Commission
takes action. Depending on the actual item, the Planning Commission may approve, deny, table, or forward a
recommendation to the Board of Supervisors regarding the agenda item. No public comment is accepted
during the Action Item portion of the agenda.
Information/Discussion Item– The portion of the meeting agenda where items are presented to the Planning
Commission for information and discussion. The Planning Commission may offer comments and suggestions,
but does not take action on the agenda item. No public comment is accepted during the
Information/Discussion Item portion of the agenda.
Planning Terminology
Urban Development Area or UDA – The UDA is the county’s urban growth boundary identified in the
Comprehensive Plan in which more intensive forms of residential development will occur. The UDA is an area
of the county where community facilities and public services are more readily available and are provided more
economically.
Sewer and Water Service Area or SWSA – The SWSA is the boundary identified in the Comprehensive Plan in
which public water and sewer is or can be provided. The SWSA is consistent with the UDA in many locations;
however the SWSA may extend beyond the UDA to promote commercial, industrial, and institutional land uses
in area where residential land uses are not desirable.
Land Use – Land Use is the nomenclature which refers to the type of activity which may occur on an area of
land. Common land use categories include: agricultural, residential, commercial, and industrial.
Zoning District ‐ Zoning district refers to a specific geographic area that is subject to land use standards.
Frederick County designates these areas, and establishes policies and ordinances over types of land uses,
density, and lot requirements in each zone. Zoning is the main planning tool of local government to manage
the future development of a community, protect neighborhoods, concentrate retail business and industry, and
channel traffic.
Rezoning – Rezoning is the process by which a property owner seeks to implement or modify the permitted
land use activities on their land. A rezoning changes the permitted land use activities within the categories
listed above under Land Use.
Conditional Use Permit or CUP ‐ A CUP allows special land uses which may be desirable, but are not always
appropriate based on a location and surrounding land uses. The CUP requested use, which is not allowed as a
matter of right within a zoning district, is considered through a public hearing process and usually contains
conditions to minimize any impacts on surrounding properties.
Ordinance Amendment – The process by which the County Code is revised. Often the revisions are the result
of a citizen request with substantial justification supporting the change. Amendments ultimately proceed
through a public hearing prior to the PC forwarding a recommendation to the Board of Supervisors.
County Bodies Involved
Board of Supervisors or BOS ‐ Frederick County is governed by an elected Board of Supervisors composed of
seven members, one from each magisterial district, and one chairman‐at‐large. The Board of Supervisors is the
policy‐making body of the county. Functions of the Board of Supervisors related to planning include making
land use decisions, and establishing growth and development policies.
Planning Commission or PC ‐ The PC is composed of 13 members, two from each magisterial districts and one
at‐large, appointed by the Board of Supervisors. The Planning Commission serves in an advisory capacity to the
Board of Supervisors which then takes final action on all planning, zoning, and land use matters.
Comprehensive Plans and Programs Committee or CPPC – The CPPC is a major committee of the PC whose
primary responsibility is to formulate land use policies that shape the location and timing of development
throughout the County. Included in the work are studies of specific areas to develop guidelines for future land
use within those areas. The CPPC also considers requests for amendments to the Comprehensive Plan.
Decisions by CPPC are then forwarded to the PC for consideration.
Development Review and Regulations Committee or DRRC – The DRRC is the second major committee of the
PC whose primary responsibilities involve the implementation of the Comprehensive Plan in the form of
Zoning and Subdivision ordinance requirements. Requests to amend the ordinances to the DRRC are made by
the Board of Supervisors, Planning Commission, local citizens, businesses, or organizations. DRRC decisions
are also forwarded to the PC for consideration.
A
Frederick County Planning Commission Page 3153
Minutes of October 1, 2014
MEETING MINUTES
OF THE
FREDERICK COUNTY PLANNING COMMISSION
Held in the Board Room of the Frederick County Administration Building at 107 North Kent Street in
Winchester, Virginia on October 1, 2014.
PRESENT: June M. Wilmot, Chairman/Member at Large; Roger L. Thomas, Vice
Chairman/Opequon District; Robert S. Molden, Opequon District; Gary R. Oates, Stonewall District; J.
Stanley Crockett, Stonewall District; Lawrence R. Ambrogi, Shawnee District; H. Paige Manuel,
Shawnee District; J. Rhodes Marston, Back Creek District; Greg L. Unger, Back Creek District; Charles
E. Triplett, Gainesboro District; Charles F. Dunlap, Red Bud District: Roderick B. Williams, County
Attorney; Robert Hess, Board of Supervisors Liaison; Kevin McKannan, City of Winchester Liaison.
ABSENT: Christopher M. Mohn, Red Bud District, Kevin Kenney, Gainesboro District.
STAFF PRESENT: Eric R. Lawrence, Planning Director; Michael T. Ruddy, Deputy Director;
Candice E. Perkins, Senior Planner; and Shannon L. Conner, Administrative Assistant
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CALL TO ORDER
Chairman Wilmot called the October 1, 2014 meeting of the Frederick County Planning
Commission to order at 7:00 p.m. Chairman Wilmot commenced the meeting by inviting everyone to
join in a moment of silence.
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ADOPTION OF AGENDA
Upon motion made by Commissioner Oates and seconded by Commissioner Molden, the
Planning Commission unanimously adopted the agenda for this evening’s meeting.
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MINUTES
Upon motion made by Commissioner Oates and seconded by Commissioner Thomas, the
Planning Commission unanimously adopted the minutes of their August 20, 2014 meeting and the
September 3, 2014 Application Staff Briefing minutes.
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Frederick County Planning Commission Page 3154
Minutes of October 1, 2014
COMMITTEE REPORTS
Comprehensive Plans & Programs Committee (CPPC) – 9/8/14 Mtg.
Commissioner Oates reported the CPPC held a discussion of the Southern Frederick Area
Plan, an amendment to the 2030 Comprehensive Plan.
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City of Winchester Planning Commission – 9/16/14 Mtg.
Commissioner McKannan reported the Planning Commission for the City of Winchester
considered three items, first being a CUP for extended stay lodging at 132 N. Braddock Street. The
second item reported by Commissioner McKannan was a zoning request for 7.7 acres on Cedar Creek
Grade. This property was originally set for adult apartments but is now being slated for a nursing home
and extended care facility. Lastly, Commissioner McKannan reported the City of Winchester is seeking
preliminary subdivision approval of a subdivision right of way dedication for Meadow Branch Avenue
going all the way to the new John Kerr site.
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Transportation Committee - 9/22/14 Mtg.
Commissioner Oates reported the following items from the transportation Committee
meeting: 1) a request from Winchester & Western for support of a new road crossing for a maintenance
shed in Gore. The committee voted in favor of the crossing; 2) Mr. Greg Sanders of VDOT discussed
signal lights, how they are programmed, and where they are trying to go in the future to have a camera at
every stoplight; 3) there were two revenue sharing applications and both were approved to move forward.
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Board of Supervisors Report – 9/10/14 Mtg.
Board of Supervisors’ Liaison, Supervisor Robert Hess, reported the Board held a public
hearing on the Comprehensive Plan Amendment to add the location of the fourth high school into the
SWSA. Following the public hearing the Board approved the amendment. The following three items the
Board agreed to move to public hearing; 1) Southern Frederick Area Plan; 2) revisions to the Frederick
County Zoning Ordinance to allow for a Zoning District buffer waiver; and 3) revisions to the Zoning
Ordinance to revise the outdoor storage screening requirements for outdoor storage areas.
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Frederick County Planning Commission Page 3155
Minutes of October 1, 2014
Citizen Comments
Chairman Wilmot called for citizen comments on any subject not currently on the
Planning Commission’s agenda or any item that is solely a discussion item for the Commission. No one
came forward to speak and Chairman Wilmot closed the citizen comments portion of the meeting.
PUBLIC HEARING
Southern Frederick Area Plan – This is a public hearing for the Southern Frederick Area Plan.
The Plan encompasses the area generally east of Interstate 81 to the Clarke County line and from
the Opequon Creek in the north to Lake Frederick in the south. The Plan contains four maps and
a narrative text that covers the following areas: Urban Areas and Residential Development,
Business Development, Transportation, and Natural Resources, Historic Resources, and Public
Facilities, and is an update to Appendix I of the 2030 Comprehensive Plan and the Eastern
Frederick County Long Range Land Use Plan, a component of the 2030 Comprehensive Plan. This
Plan represents the work of a large number of citizen volunteers who have been working over the
past several months in collaboration with each other.
Action – Recommended Approval
Deputy Planning Director, Michael T. Ruddy, presented an overview of the Southern
Frederick Area Plan. Mr. Ruddy reported that after a work session with the Planning Commission and
Board of Supervisors it was requested that more illustration and clarification be provided on a couple of
items. The first item was areas of change to the original 277 plan. Staff identified there were two main
areas that had changed. The first area of change is the Lakeside/Tasker Road area, and the second change
is the White Oak Road to the northern entrance of the Lake Frederick Area.
Mr. Ruddy clarified the changes for the proposed areas. The Lakeside/Tasker Road area
is primarily residential in land use and the adjustment includes commercial neighborhood village focal
points in areas such as Artrip, Bowman Library at Lakeside, Warrior Drive, and Tasker Road. The
second area of changed land use is at White Oak Road and the northern entrance to Lake Frederick in the
future. Mr. Ruddy commented that the structure of the area is basically the same but there is now a
different orientation of land uses in that area.
Mr. Ruddy commented on the public participation that has transpired through this project
with several meetings held at Robert E. Aylor Middle School, forming working groups, and public review
meetings.
Chairman Wilmot asked if the current mapping would be part of the appendix, Mr.
Ruddy clarified that the maps prepared for the presentation are for informational purposes only. The four
main maps would be part of the appendix. Chairman Wilmot commented that the text and mapping was
superb and requested that we keep these on hand for future use.
Chairman Wilmot opened the public hearing and called for anyone who wished to speak
regarding this request to come forward. No one came forward to speak and Chairman Wilmot closed the
public comment portion of the hearing.
Frederick County Planning Commission Page 3156
Minutes of October 1, 2014
Upon motion made by Commissioner Thomas and seconded by Commissioner Molden,
BE IT RESOLVED, the Frederick County Planning Commission does hereby unanimously recommended
approval of the Southern Frederick Area Plan.
(Note: Commissioners Kenny and Mohn were absent from the meeting)
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An ordinance to amend the Frederick County Code, Chapter 165, Zoning Article II Supplementary
Use Regulations; Parking; Buffer; and Regulations for Specific Uses, Part 203-Buffer and
Landscaping, §165-203.02 Buffer and Screening Requirements. Revisions to the Frederick County
Zoning Ordinance to allow for a Zoning District buffer waiver when the planned land use shown in the
Comprehensive Plan is compatible.
Action – Recommended Approval
Commissioner Oates said he would abstain from all discussion on this item due to a
possible conflict of interest.
Senior Planner, Candice E. Perkins, reported this is a request to revise a zoning ordinance
to include the zoning district buffer waiver that allows the Board of Supervisors to either modify or
eliminate a buffer if the adjoining land use to a commercially or industrially zoned property is designated
in the adopted Comprehensive Policy Plan for a use that would not require a buffer. The waiver as
drafted would require support from the adjoining property owner that would be impacted.
Chairman Wilmot opened the public hearing and called for anyone who wished to speak
regarding this request to come forward. No one came forward to speak and Chairman Wilmot closed the
public comment portion of the hearing.
Upon motion made by Commissioner Thomas and seconded by Commissioner Triplett
BE IT RESOLVED, the Frederick County Planning Commission does hereby unanimously recommend
approval of an ordinance to amend the Frederick County Code, Chapter 165, Zoning Article II
Supplementary Use Regulations; Parking; Buffer; and Regulations for Specific Uses, Part 203-Buffer and
Landscaping, §165-203.02 Buffer and Screening Requirements.
(Note: Commissioners Kenney and Mohn were absent from the meeting.)
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An ordinance to amend the Frederick County Code, Chapter 165, Zoning, Article II
Supplementary Use Regulations; Parking; Buffers; and Regulations for Specific Uses, Part 201-
Supplementary Use Regulations, §165-201.10 Outdoor storage and processing. Revisions to the
Frederick County Zoning Ordinance to revise the outdoor storage screening requirements for outdoor
storage areas.
Frederick County Planning Commission Page 3157
Minutes of October 1, 2014
Action – Recommended Approval
Commissioner Oates said he would abstain from all discussion on this item due to a
possible conflict of interest.
Senior Planner, Candice E. Perkins reported this is a request to modify the zoning
ordinance regarding the screening requirements for outdoor storage areas. The current ordinance requires
that all outdoor storage areas be completely screened from the view of roads, streets, as well as
surrounding properties by a fence, wall, or a type of six foot screening. Mrs. Perkins commented that in
addition to the outdoor screening eliminations there are also a few minor changes such as the surface
materials for the lots as well as some landscaping exceptions.
Chairman Wilmot opened the public hearing and called for anyone who wished to speak
regarding this request to come forward. No one came forward to speak and Chairman Wilmot closed the
public comment portion of the hearing.
Upon Motion made by Commissioner Thomas and seconded by Commissioner Dunlap
BE IT RESOLVED, the Frederick County Planning Commission does hereby unanimously recommend
approval of an ordinance to amend the Frederick County Code, Chapter 165, Zoning, Article II
Supplementary Use Regulations; Parking; Buffers; and Regulations for Specific Uses, Part 201-
Supplementary Use Regulations, §165-201.10 Outdoor storage and processing.
(Note: Commissioners Kenney and Mohn were absent from the meeting.)
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ACTION ITEM:
Rezoning #03-14 Governors Hill, submitted by Williams H. Gordon Associates, to request a minor
proffer revision associated with Rezoning #10-08. This revision related to the Transportation section of
the proffers. The property is located approximately one mile east of Interstate 81 on the south side of the
Millwood Pike (Route 50 East), across from Sulphur Springs Road (Route 655) and The Ravens
subdivision are identified by Property Identification Numbers 64-A-86 and 64-A-87 in the Shawnee
Magisterial District.
Action – Recommended Approval
Deputy Planning Director, Michael T. Ruddy, presented an overview of the applicant’s
request of a minor proffer revision. He noted that the proposed proffer revision specifically changes the
amount of office space that may be developed on the property utilizing access to the existing completed
portion of Coverstone Drive. The applicant is seeking to increase the office space that may use existing
Coverstone Drive from 200,000 square feet to 300,000 square feet. This revision may delay the triggered
improvement of Phase I of Coverstone Drive from Route 50 onto the property. Mr. Ruddy reiterated that
the revision applied only to parcels 64-A-86 and 64-A-87.
Frederick County Planning Commission Page 3158
Minutes of October 1, 2014
Chairman Wilmot asked for comments or questions from the Planning Commission or the
applicant concerning this revision. There were no questions or comments.
Upon motion made by Commissioner Manuel and seconded by Commissioner Ambrogi,
BE IT RESOLVED, the Frederick County Planning Commission does hereby unanimously recommend
approval of the Rezoning #03-14 Governors Hill, submitted by Williams H. Gordon Associates, to
request a minor proffer revision associated with Rezoning #10-08. This revision related to the
Transportation section of the proffers. The property is located approximately one mile east of Interstate
81 on the south side of the Millwood Pike (Route 50 East), across from Sulphur Springs Road (Route
655) and The Ravens subdivision are identified by Property Identification Numbers 64-A-86 and 64-A-87
in the Shawnee Magisterial District.
(Note: Commissioners Kenney and Mohn were absent from the meeting.)
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INFORMATION/DISCUSSION ITEMS:
Black Diamond Site Plan Requirements
No Action Required
Commissioner Oates said he would abstain from all discussion on this item due to a
possible conflict of interest.
Senior Planner, Candice E. Perkins reported this site plan is being presented due to its
implications on the planned path for Route 37. The site is located in the Stonewall Industrial Park in the
Stonewall Magisterial District. The plans for Stonewall Industrial Park do not accommodate the Route 37
right of way. The property is located on McGhee Road and contains structures that are within the path of
Route 37. Mrs. Perkins stated that in an effort to keep the Planning Commission and Board of
Supervisors apprised of the Route 37 right of way, site plans and subdivisions that impact the right of way
are presented to each for their review.
Commissioner Unger asked what the solution is if this gets approved, and since it is in
the path of Route 37, he stated what happens then. Mrs. Perkins commented that the ordinance cannot
require the land owner to dedicate the right of way and the land owner has every right to use the land.
She also stated there are not any adopted plans for the right of way for the actual design of the property.
Mrs. Perkins mentioned that if Frederick County goes forward with constructing Route 37 and they
choose to keep the existing alignment, the property would have to be purchased.
Commissioner Dunlap commented that if this site plan and site plans in the future are
approved and Route 37 continues in the current alignment, Frederick County could be on the hook to
purchase the property which would be improved and cost the taxpayer more. Commissioner Dunlap
expressed concern that the Planning Commission’s hands are tied because the construction of Route 37 is
not set in stone.
Frederick County Planning Commission Page 3159
Minutes of October 1, 2014
Mrs. Perkins commented that no action is required on this item and that site plans are an
administrative function, once they meet the other county agencies approvals, staff must precede with the
approval process.
Commissioner Crockett commented he feels the need for Route 37 like many others and
it has been in discussion for a very long time. He stated that his heart goes out to the land owner and that
it isn’t fair to have the land owner carry the burden of reserving this property if Route 37 is not even
approved at this point.
Commissioner Thomas commented that Route 37 is not an approved project in anyone’s
budget right now. He stated that unless the county is willing to buy land and reserve it, then it is not
reasonable to expect the owner of the property to not proceed with his land rights and build what he is
permitted to build.
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OTHER
Cancelation of the Regular Meeting on October 15, 2014
Chairman Wilmot announced there were no pending items for the Planning
Commission’s October 15, 2014 meeting.
A motion was made by Commissioner Oates to cancel the October 15, 2014 meeting of
the Planning Commission. This motion was seconded by Commissioner Triplett and unanimously
passed.
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ADJOURNMENT
No further business remained to be discussed and a motion was made by Commissioner Oates to adjourn
the meeting. This motion was seconded by Commissioner Molden and unanimously passed. The
meeting adjourned at 7:45 p.m.
Respectfully submitted,
____________________________
June Wilmot, Chairman
____________________________
Eric R. Lawrence, Secretary
B
REZONING APPLICATION #04-14
Baker & Lepley Properties
Staff Report for the Planning Commission
Prepared: October 20, 2014
Staff Contact: Candice E. Perkins, AICP, Senior Planner
This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in making a decision on this
application. It may also be useful to others interested in this zoning matter. Unresolved issues
concerning this application are noted by staff where relevant throughout this staff report.
Reviewed Action
Planning Commission: 11/05/14 Pending
Board of Supervisors: 11/12/14 Pending
PROPOSAL: To rezone 8.59 +/- acres from the MH-1 (Mobile Home Community) and RA (Rural
Areas) Zoning District to the RA (Rural Areas) Zoning District.
LOCATION: The three properties are located on Sinking Springs Lane in Gore (travel Route 50 West
approximately 15 miles, turn left onto Gore Road, continue .5 miles on Gore Road, left onto Sinking
Spring Lane).
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBERS: 28-A-75, 28-A-76 and 28-A-82
PROPERTY ZONING: MH-1 (Mobile Home Community) District and RA (Rural Areas) District
PRESENT USE: Single Family Residential
ADJOINING PROPERTY ZONING & PRESENT USE:
North: RA (Rural Areas) Use: Residential
B2 (Business General)
South: RA (Rural Areas) Use: Residential
East RA (Rural Areas) Use: Residential
West: RA (Rural Areas) Use: Residential & Railroad Facility
STAFF CONCLUSIONS FOR THE 011/05/14 PLANNING COMMISSION MEETING: The land
use proposed in this application is consistent with the Comprehensive Policy Plan and promotes the
County’s rural areas. This is a positive rezoning application as it removes an area of MH-1 Zoning from
a location that would not be typically used for a mobile home park because of its location outside the
UDA and SWSA.
Following the required public hearing, a recommendation regarding this rezoning application to
the Board of Supervisors would be appropriate. The applicant should be prepared to adequately
address all concerns raised by the Planning Commission.
Rezoning #04-14Baker and Lepley Properties
October 20, 2014
Page 2
REVIEW EVALUATIONS: None Required.
Planning & Zoning:
1) Site History
The original Frederick County Zoning Map (U.S.G.S. Gore Quadrangle) depicts parcels 28-A-
75 and 28-A-82 as being split zoned MH (Mobile Home) District and A-1 (Agricultural
Limited) District and parcel 28-A-76 as entirely zoned MH (Mobile Home) District. The
County’s agricultural zoning districts were subsequently combined to form the RA (Rural
Areas) District upon adoption of an amendment to the Frederick County Zoning Ordinance on
May 10, 1989. Each of the properties contains one residential dwelling unit each. Parcel 28-A-
75(151 Sinking Spring Lane) has one mobile home, parcel 28-A-76 (175 Sinking Spring Lane)
contains one mobile home and 28-A-82 (171 Sinking Spring Lane) has one manufactured home.
2)
The Frederick County 2030 Comprehensive Plan is an official public document that serves as
the community's guide for making decisions regarding development, preservation, public
facilities and other key components of community life. The primary goal of this plan is to
protect and improve the living environment within Frederick County. It is in essence a
composition of policies used to plan for the future physical development of Frederick County.
Comprehensive Policy Plan
Land Use
The properties are located outside the Urban Development Area (UDA) and the Sewer and
Water Service Area (SWSA). It is not within the limits of any small area land use plan. The
properties are located in an area that is designated as a rural area. The rural areas of Frederick
County are anticipated to promote agricultural and large lot residential uses without public
water and sewer. Goals for the rural areas include maintaining the rural character of areas
outside the Urban Development Area and protecting the rural environment. Therefore removal
of the historical mobile home zoning from the three properties is consistent with the goals of the
2030 Comprehensive Plan.
3) Potential Impacts: No impacts are anticipated. This is a positive rezoning request that
minimizes potential future impacts and addresses the Comprehensive Plan. Due to the scope of
this rezoning request a detailed impact statement was not required. A proffer statement was not
provided with this rezoning request.
STAFF CONCLUSIONS FOR THE 011/05/14 PLANNING COMMISSION MEETING:
The land use proposed in this application is consistent with the Comprehensive Policy Plan and
promotes the County’s rural areas. This is a positive rezoning application as it removes an area of MH-1
Zoning from a location that would not be typically used for a mobile home park because of its location
outside the UDA and SWSA.
Following the required public hearing, a recommendation regarding this rezoning application to
the Board of Supervisors would be appropriate. The applicant should be prepared to adequately
address all concerns raised by the Planning Commission.
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28 A 53 28 A 54
28 A 70
28 A 79
28 A 80
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28 A 95
28 A 20
28 A 21
28 A 30A
28 A 48
28 A 49
28 A 50
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28 A 61
28 A 65
28 A 72
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28 A 82
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28 A 60
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28 A 78
28 A 83
28 A 98
28 A 25
28 A 26A
28 A 56
28 A 69
28 A 75
28 A 96
28 A 99
28 A 100 28 A103A
Applications
Parcels
Building Footprints
B1 (Business, Neighborhood District)
B2 (Business, General Distrist)
B3 (Business, Industrial Transition District)
EM (Extractive Manufacturing District)
HE (Higher Education District)
M1 (Industrial, Light District)
M2 (Industrial, General District)
MH1 (Mobile Home Community District)
MS (Medical Support District)
OM (Office - Manufacturing Park)
R4 (Residential Planned Community District)
R5 (Residential Recreational Community District)
RA (Rural Area District)
RP (Residential Performance District)
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Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: September 25, 2014Staff: cperkins
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REZ # 04 - 14Baker and Lepley PropertiesPINs:28 - A - 75, 28 - A - 76, 28 - A - 82Rezoning from MH1 to RA
REZ # 04 - 14Baker and Lepley PropertiesPINs:28 - A - 75, 28 - A - 76, 28 - A - 82Rezoning from MH1 to RA
0 250 500125 Feet
28 A 82
C
CONDITIONAL USE PERMIT #03-14
CAROLINE E. WATSON
Staff Report for the Planning Commission
Prepared: October 1, 2014
Staff Contact: Mark Cheran, Zoning Administrator
This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in making a decision on
this request. It may also be useful to others interested in this zoning matter.
Reviewed Action
Planning Commission: 11/05/14 Pending
Board of Supervisors: 12/10/14 Pending
EXECUTIVE SUMMARY: This is a request for a Licensed Home Child Care.
Should the Planning Commission find this use appropriate, Staff would suggest the following
conditions be placed on the Conditional Use Permit (CUP):
1. All review agency comments and requirements shall be complied with at all times.
2. Hours of operation shall be permitted from 7 a.m. to 5 p.m., Monday through Friday.
3. The applicant shall satisfy the licensing requirements of the Virginia Department of Social
Services and the County of Frederick.
4. No business sign associated with this Conditional Use Permit (CUP) shall be erected on the
property.
5. Other than those children residing on the property, there shall be no more than twelve (12)
children being cared for at any given time.
6. Other than those persons residing on the property, there shall be no more than one (1)
employee working at the daycare at any time.
7. Any expansion or change of use will require a new Conditional Use permit.
Following the requisite public hearing, it would be appropriate for the Planning Commission
to offer a recommendation concerning this application to the Board of Supervisors.
Page 2
CUP #03-14 Caroline E. Watson
October 1, 2014
LOCATION: The property is located at 215 Westmoreland Drive.
MAGISTERIAL DISTRICT: Opequon
PROPERTY ID NUMBER: 75E-1-3-165
PROPERTY ZONING & PRESENT USE:
Zoned: RP (Residential Performance) Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RP (Residential Performance) Land Use: Residential
South: RP (Residential Performance) Land Use: Residential
East: RP (Residential Performance) Land Use: Residential
West: RP (Residential Performance) Land Use: Residential
PROPOSED USE: Licensed Home Child Care.
REVIEW EVALUATIONS:
Virginia Department of Transportation: VDOT has no objection to this renewal.
Frederick County Fire and Rescue: Plans approved provided that at least 1-5# ABC Fire
Extinguisher is properly hung & tagged along with at least one working smoke detector in the
area of operation.
Frederick County Fire Marshall: Plans approved.
Frederick County Inspections: The existing building shall comply with The Virginia Uniform
Statewide Building Code (USBC) at the time the structure was built (1986). Building shall
comply with the 1984 Uniform Statewide Building Code and CABO 1983 Building Code. The
owner shall be in possession of a certificate of occupancy for the dwelling under the code edition
that is noted above. Current Family Day Homes where program oversight is provided by the
Virginia Department of Social Services is allowed to be classified as R-5 (Residential One and
Two Family Dwellings) Family day homes generally care for up to 12 children. See DHCD
related Laws Package for additional information (USBC Section 310.4). Any alteration to
existing structure is required to have a building permit.
Frederick-Winchester Health Department: It appears this property is on public water and
sewer. This department has no objections to this request.
Winchester Regional Airport: No impact to airport operations.
Page 3
CUP #03-14 Caroline E. Watson
October 1, 2014
Frederick County Sanitation Authority: No comments.
City of Winchester: No comments.
Planning and Zoning: A licensed in-home daycare facility is a permitted use as a cottage
occupation in the RP (Residential Performance) District with an approved Conditional Use
Permit (CUP). An in-home daycare facility is defined by the Zoning Ordinance as a facility in
which more than five children, not including those children related to the people who maintain
the facility, are received for care, protection, and guidance during only part of the 24-hour day.
This licensed in-home daycare facility has been in operation within the principal residential
structure for fourteen (14) years. The applicant was not aware that a CUP was needed for
operation of an in-home daycare facility. The facility was inspected by the state this year and the
issue of a CUP was noted by the state licensing office. The applicant applied for this CUP to
bring the property in compliance with the Frederick County Zoning Ordinance. Staff to date has
not received any complaints as it relates to the existing in-home daycare. The Virginia
Department of Social Services currently has Ms. Caroline Watson licensed for a capacity of
twelve (12) children, ages infancy through (12).
STAFF CONCLUSIONS FOR THE 11/05/14 PLANNING COMMISSION MEETING:
Should the Planning Commission find this use appropriate, Staff would recommend the
following conditions be placed on the Conditional Use Permit (CUP):
1. All review agency comments and requirements shall be complied with at all times.
2. Hours of operation shall be permitted from 7 a.m. to 5 p.m., Monday through Friday.
3. The applicant shall satisfy the licensing requirements of the Virginia Department of
Social Services and the County of Frederick.
4. No business sign associated with this Conditional Use Permit (CUP) shall be erected on
the property.
5. Other than those children residing on the property, there shall be no more than twelve
(12) children being cared for at any given time.
6. Other than those persons residing on the property, there shall be no more than one (1)
employee working at the daycare at any time.
7. Any expansion or change of use will require a new Conditional Use permit.
Page 4
CUP #03-14 Caroline E. Watson
October 1, 2014
Following the requisite public hearing, it would be appropriate for the Planning Commission
to offer a recommendation concerning this application to the Board of Supervisors.
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REZONING APPLICATION #02-14
Heritage Commons
Staff Report for the Planning Commission
Prepared: October 22, 2014
Staff Contacts: Candice E. Perkins, AICP, Senior Planner
John Bishop, AICP, Deputy Director - Transportation
PROPOSAL: To rezone 96.28 acres from B2 (Business General) District to R4 (Residential Planned
Community) District and 54 acres from RP (Residential Performance) District to R4 (Residential
Planned Community) District and .31 acres from the RA (Rural Areas) District to the R4 (Residential
Planned Community) District with proffers.
LOCATION: The site fronts on the west side of Front Royal Pike (Route 522), opposite Airport Road
(Route 645), and has frontage on the east side of Interstate 81.
EXECUTIVE SUMMARY & STAFF CONCLUSION FOR THE 11/05/2014 PLANNING
COMMISSION MEETING:
The Heritage Commons rezoning application is a request to use the R4 (Residential Planned
Community) Zoning District, with modifications and proffers, to construct a development with 1,200
residential units, commercial, and industrial uses. The project is located on the 150-acre property
commonly known as Russell 150. The 1,200 residential units include 1,050 multifamily units and 150
townhomes.
The land uses shown with the Heritage Commons rezoning application are not consistent with the 2030
Comprehensive Plan. Additionally, the application does not adequately address the negative impacts
associated with this request; in particular, the negative transportation and fiscal impacts. The application
also fails to comply with Chapter 527 transportation requirements, which would result in a conflict with
the Code of Virginia. The following items and any further issues raised by the Planning Commission
should be addressed prior to securing a favorable decision from the Planning Commission:
1) Many of the Review Agency concerns and comments remain unaddressed, specifically
VDOT, FCPS, Parks and Recreation, County Attorney and Public Works. Staff has included
charts that outline all agency concerns, the applicant’s response and whether the comment
has been addressed in the proffer.
2) The proposed R4 zoning being sought with this rezoning application could enable a mixed
use development; however, as proffered, the development could consist of an 85 acre high
density residential area with a 53 acre commercial/industrial zoned area (12 acre
environmental area), with the uses being clearly segregated from one another. The project
appears to have lost its identity as a mixed use urban center as described by the applicant and
illustrated at the September 2014 staff application briefing session. The project was
envisioned and described by the applicant as an urban center with surrounding office and
apartments (illustrated by applicant’s tour of NOVA, with luxury apartments (applicant’s
video illustrative) and a county office building complex). There are no assurances within the
proffer statement as to what type of development would materialize.
Rezoning #02-14 Heritage Commons
October 22, 2014
Page 2
3) The negative fiscal impacts associated with the residential uses proposed on the property have
not been satisfactorily addressed. The applicant’s Market and Fiscal Impact Analysis
(MFIA) by S. Patz & Associates shows a positive fiscal gain; however, the Patz report utilizes
full build-out of the commercial and residential landbays to achieve this figure (15+/- years,
1,200 market rate residential units and 700,000sf of commercial). The phasing proffer
proposed by the applicant falls grossly short of achieving what their Patz model is utilizing to
achieve the positive fiscal gain. The applicant is also not proffering market rate multifamily
units as indicted by the analysis. The County’s development impact model projects a negative
impact of $13,062 per single family attached unit and $11,339 per multifamily unit on
County capital facilities. Therefore, based on the unit cap of proffer 2C, the potential
negative impact the residential units will have on County facilities is $13.9 million. The
development should not utilize the future potential tax contributions of the commercial
landbays to offset the negative impacts of residential landbays without guaranteed phasing of
commercial uses to be built in conjunction with the residential uses.
Note: Staff was advised that the MFIA was updated to address inaccuracies in the input
data (memorandum of concerns was dated August 29, 2014). Staff received an updated
MFIA dated August 26, 2014; however the document was revised prior to the applicant
receiving the concerns from the Treasurer and the Commissioner of the Revenue
(memorandum dated August 29, 2014). The MFIA continues to not address staff’s
concerns on the input data.
4) The lack of proffered phasing of the commercial land uses with the residential uses results in
limited, if any, revenue to offset the residential impacts. The phasing proffer proposed states
that the applicant would need to apply for and receive a building permit for 50,000 square
feet of commercial use in order to construct the first 300 multifamily residential units. The
applicant would need to have a Certificate of Occupancy for the 50,000 square feet of
commercial area prior to obtaining permits for applying for the 600th or greater multifamily
residential units. The applicant would need to apply for and receive permits for an additional
50,000 square feet of commercial prior to obtaining permits for the next 600 multifamily
residential units. The proffer also addresses that a certificate of occupancy must be obtained
for the 50,000 square feet but there is no trigger associated with it. As written, the proffer
would allow the construction of 599 multifamily residential units and 184 townhouses with
the construction of only 50,000 square feet of commercial area. This is not consistent with
the Patz suggested phased approach to maintain economic balance, nor does this phasing
proffer guarantee to offset impacts from residential uses. As written, the phasing proffer
provides little if any benefit to the County.
5) The land uses shown within landbays 3 and 7 are not supported by the 2030 Comprehensive
Plan. The proffers show landbay 3 with mixed residential and commercial land uses, the
Comprehensive Plan designates this area for employment land uses. The proffers show
landbay 7 (53.95 acres) with the ability to develop with 100% commercial or industrial uses.
The Comprehensive Plan shows the entire area that encompasses landbay 7 as high density
residential. Introducing commercial or industrial uses into landbay 7 is not supported by the
2030 Comprehensive Plan.
Rezoning #02-14 Heritage Commons
October 22, 2014
Page 3
Transportation Concerns:
1) While residential units and their maximums are specifically capped the same is not true of
other uses. There is a blanket cap of 1.2 million square feet of some mix of retail, office, and
industrial development. Without more specifics regarding what that mix is, it is difficult to
determine what the specific trip generation is. However, the TIA for the existing zoning on
the property has significantly less residential development and a total retail and office
component of 704,450 square feet. According to VDOT, in order not to exceed the previously
approved traffic generation this property could not do more than 298,000 square feet of retail
in addition to their proposed residential or if only office were being developed they could do
1,150,000 square feet in addition to their residential. Based upon this intensification of use,
we do not believe this application to be in compliance with Chapter 527 of State Code which
requires a traffic study be completed. The reason this is so important is that transportation
systems for this area have been planned and in some cases are under design. A significant
intensification of use could render those plans and designs inadequate and we would not
know without the traffic study. While clarification has been requested from the applicant, no
additional information has been provided.
2) Details regarding road section have been added to the proffer which are very helpful. The
proffers are heavily reliant on the agreement between the applicant and Frederick County for
revenue sharing. Staff would urge expediency in coming to that agreement or some other
surety that protects the County in the event that an agreement is not reached.
3) The property’s current proffer’s $1,000,000 in funds toward the transportation system has
been removed.
4) The language regarding the construction of Warrior Drive, while much improved may make
an actual future partnership on roadway construction unlikely. It is unknown when the
property to the south may develop and it would be extremely easy to develop much of the
southern section of the development without actually adjoining future Warrior Drive.
STAFF CONCLUSIONS FOR 11/05/14 PLANNING COMMISSION MEETING:
The land uses shown with the Heritage Commons rezoning application are not consistent with the 2030
Comprehensive Plan. Additionally, the application does not adequately address the negative impacts
associated with this request; in particular, the negative transportation and fiscal impacts. The application
also fails to comply with Chapter 527 transportation requirements, which would result in a conflict with
the Code of Virginia. Throughout the report, Staff has noted a number of inaccuracies and concerns
that are present with this rezoning application. Confirmation of the issues identified in the staff report,
and any issues raised by the Planning Commission, should be addressed prior to securing a favorable
decision from the Planning Commission.
Following the required public hearing, a recommendation regarding this rezoning application
to the Board of Supervisors would be appropriate. The applicant should be prepared to
adequately address all concerns raised by the Planning Commission.
Rezoning #02-14 Heritage Commons
October 22, 2014
Page 4
This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in making a decision on this
application. It may also be useful to others interested in this zoning matter. Unresolved issues
concerning this application are noted by staff where relevant throughout this staff report.
Reviewed Action
Staff Application Briefing: 09/03/14 Reviewed
Planning Commission: 11/05/14 Pending
Board of Supervisors: 12/10/14 Pending
PROPOSAL: To rezone 96.28 acres from B2 (Business General) District to R4 (Residential Planned
Community) District and 54 acres from RP (Residential Performance) District to R4 (Residential
Planned Community) District and .31 acres from the RA (Rural Areas) District to the R4 (Residential
Planned Community) District with proffers.
LOCATION: The site fronts on the west side of Front Royal Pike (Route 522), opposite Airport Road
(Route 645), and has frontage on the east side of Interstate 81.
MAGISTERIAL DISTRICT: Shawnee
PROPERTY ID NUMBER(S): 64-A-10, 64-A-12, 64-A-150
PROPERTY ZONING: B2 (Business General) District, RP (Residential Performance) District and
RA (Rural Areas) District
PRESENT USE: Vacant
ADJOINING PROPERTY ZONING & PRESENT USE:
North: RP (Residential Performance) Use: Residential/Institutional
B2 (Business General) Vacant
South: RP (Residential Performance) Use: Vacant (Madison Village)
B2 (Business General) Vacant
East: RP Use: Residential
West: City of Winchester Use: Residential/Vacant
PROPOSED USES: Mixed commercial/industrial and residential uses.
Rezoning #02-14 Heritage Commons
October 22, 2014
Page 5
REVIEW EVALUATIONS:
Please see attached tables and applicant’s responses for the following reviewing agencies:
Virginia Department of Transportation – Comment dated October 1, 2014 (updated comment dated
October 21, 2014 also attached)
Frederick County Public Schools – Comments dated September 18, 2014
Frederick County Public Works– Comments dated September 20, 2013 and September 26, 2014
Frederick County Attorney – Comments dated September 30, 2014
Frederick County Planning Department (Perkins) – Comments dated September 23, 2014
Frederick County Planning Department (Bishop) – Comments dated September 20, 2014
Frederick County Parks and Recreation– Comments dated September 24, 2014
Fire Marshal: Plans approved dated 9/20/13
Frederick-Winchester Sanitation Authority: Please see attached letter dated September 16, 2013.
Winchester Regional Airport: Please see attached letter dated October 10, 2013 Serena Manuel.
Planning & Zoning:
1) Site History
The original Frederick County Zoning Map (U.S.G.S. Winchester Quadrangle)
identifies these properties as being zoned R-1 (Residential Limited). The parcels were re-
mapped from R-1 to A-2 (Agricultural General) pursuant to the County’s comprehensive
downzoning initiative (Zoning Amendment Petition #011-80), which was adopted on October 8,
1980. The County’s agricultural zoning districts were subsequently combined to form the RA
(Rural Areas) District upon adoption of an amendment to the Frederick County Zoning
Ordinance on May 10, 1989. The corresponding revision of the zoning map resulted in the re-
mapping of the subject property and all other A-1 and A-2 zoned land to the RA District.
Properties 64-A-10 and 64-A-12 were rezoned in 2005 from the RA District to the B2 and RP
Districts with Rezoning Application #01-05 for Russell 150 with proffers. The proffers
approved with Rezoning #01-05 are attached.
2)
The Frederick County Comprehensive Policy Plan is an official public document that serves as
the community's guide for making decisions regarding development, preservation, public
facilities and other key components of community life. The primary goal of this plan is to
protect and improve the living environment within Frederick County. It is in essence a
composition of policies used to plan for the future physical development of Frederick County.
[Comprehensive Policy Plan, p. 1-1]
Comprehensive Policy Plan
Land Use
The parcels comprising this rezoning application are located within the County’s Urban
Development Area (UDA) and Sewer and Water Service Area (SWSA). The UDA defines the
general area in which more intensive forms of residential development will occur. In addition,
Rezoning #02-14 – Heritage Commons
October 22, 2014
Page 6
the Heritage Commons property is located within the Senseny/Eastern Frederick Urban Area
Plan. This land use plan calls for the area north of Buffalo Lick Run and between I-81 and
the future Warrior Drive to be developed with Employment land uses and the area south of
Buffalo Lick Run for High-Density Residential. The Heritage Commons application
proposes land uses which are not consistent with these areas of the land use plan.
Areas planned for employment land uses are envisioned to allow for intensive Retail, Office,
Flex-Tech, and/or Light Industrial Land Use in planned business park settings.
Areas planned for higher density residential development are slated to develop with 12-16 units
per acre and would generally consist of a mix of multifamily and a mix of other housing types.
This density is necessary to accommodate the anticipated growth of the County within the urban
areas and is essential to support the urban center concept identified in the Comprehensive Plan.
The Heritage Commons rezoning is proposing to develop up to 1,200 residential units
(maximum of 184 townhouse units, 1,016 multifamily units) on approximately 84.7 acres of the
property which would equate to 14.2 units per acre within the residential land bays. The types
of residential units and the proposed densities within the project are consistent with the goals of
the 2030 Comprehensive Plan and specifically the Senseny/Eastern Frederick Urban Area Plan.
The Heritage Commons rezoning allows for commercial uses within all seven land bays,
residential within three landbays and industrial within one landbay:
Landbay 1 – 7.51 acres – 100% Commercial
Landbay 2 – 8.03 acres – 100% Commercial
Landbay 3 – 9.73 acres – 5%-95% Commercial (remainder residential)
Landbay 4 – 21.91 acres – 100% Commercial
Landbay 5 – 29.91 acres – 10%-20% Commercial (remainder residential)
Landbay 6 – 6.83 acres – 100% Commercial
Landbay 7 – 53.95 acres –100% Commercial/Industrial (or 90% residential and 10%
commercial) *The table shows a minimum of 10% commercial, and therefore 90% of the
area could be used for industrial.
Landbay 3 is the area located between I-81 and the future Warrior Drive. The
Comprehensive Plan calls for employment land uses within this area, and therefore the
designation of this area for “mixed use” with an allowance for up to 95% residential uses is
inconsistent with the Comprehensive Plan.
Landbay 7 is the area located south of Buffalo Lick Run. The Comprehensive Plan calls for
high density residential in this area, and therefore the designation of this area for
commercial and industrial uses is inconsistent with the Comprehensive Plan.
Zoning Ordinance – R4 District
The R4 (Residential Planned Community) District is a district that allows for a mix of
commercial and residential land uses. The district is intended to create new neighborhoods with
an appropriate balance between residential, employment and service uses. Innovative design is
Rezoning #02-14 – Heritage Commons
October 22, 2014
Page 7
encouraged. Special care is taken in the approval of R4 developments to ensure that necessary
facilities, roads and improvements are available or provided to support the R4 development.
Planned community developments shall only be approved in conformance with the policies in
the Comprehensive Plan.
The R4 District is a flexible district that allows for an applicant to request a number of
modifications to the Zoning Ordinance to tailor the requirements to meet the needs of their
development. Done properly and in conformance with the Comprehensive Plan, the R4 District
can produce a unique and beneficial development for the community. As stated in the intent of
the district, “special care is taken in the approval of R4 developments to ensure that necessary
facilities, roads and improvements are available or provided to support the R4 development.”
Staff Note: The proposed R4 zoning being sought with this rezoning application would
enable a mixed use development; however, there are no assurances within the proffer
statement that a core/town center area will be provided. As proffered, the development could
be a traditional residential, commercial, and industrial project, with the uses being clearly
segregated from one another. This is contrary to the illustrations that the applicant has
presented in a previous tour, staff application briefing session, and video.
Transportation
The Frederick County Eastern Road Plan provides the guidance regarding future arterial and
collector road connections in the eastern portion of the County by identifying needed connections
and locations. Plans for new development should provide for the right-of-ways necessary to
implement planned road improvements and new roads shown on the road plan should be
constructed by the developer when warranted by the scale, intensity, or impacts of the
development. Existing roads should be improved as necessary by adjacent development to
implement the intentions of the plan.
Warrior Drive and the extension of Airport Road from its current terminus, over Interstate 81, into
the City of Winchester are road improvement needs that are identified in the Eastern Road Plan
that directly relate to the Russell 150 property. Both are important improvements for the County
and the City of Winchester collectively. Warrior Drive in projects to the south of the subject
rezoning have provided for a four-lane divided and raised median road section for Warrior Drive.
Accommodations for construction of these new major collector roads should be incorporated
into the project.
Corridor Appearance Buffers
The Senseny/Eastern Frederick Urban Area Plan calls for a significant corridor appearance buffer
along Route 522 similar to that established for the Route 50 West corridor in the Round Hill Land
Use Plan, which consisted of a 50 foot buffer area, landscaping, and bike path. The Heritage
Commons rezoning has not addressed this corridor enhancement.
3) Potential Impacts
Fiscal Impacts
Rezoning #02-14 – Heritage Commons
October 22, 2014
Page 8
In its current format, the application’s proposed development of 1,200 residential dwellings and
700,000 square feet of office/retail space may have a negative fiscal impact on the county.
The phasing proffer proposed states that the applicant would need to apply for and receive a
building permit for 50,000sf of commercial in order to construct the first 300 multifamily units.
The applicant would need to have a Certificate of Occupancy for the 50,000sf of commercial area
prior to obtaining permits for applying for the 600th or greater multifamily units. The applicant
would need to apply for and receive permits for an additional 50,000sf of commercial prior to
obtaining permits for the next 600 multifamily units. The proffer also addresses that a certificate
of occupancy must be obtained for the 50,000sf but there is no trigger associated with it. As
written, the proffer would allow the construction of 599 multifamily units and 184 townhouses
with the construction of only 50,000sf of commercial area. This phased proffer is not consistent
with the Patz suggested phased approach to maintain economic balance, nor does this phasing
proffer guarantee to offset impacts from residential uses. As written, the phasing proffer
provides little if any benefit to the County. Therefore, utilizing the future potential tax
contributions of the commercial landbays to offset the residential landbays without phasing the
commercial to be built in conjunction with the residential as outlined in the Applicant’s Market
and Fiscal Impacts Analysis should carefully be evaluated. This reinforces the Board’s policy of
not considering credits as part of the capital facilities evaluation processes.
County Development Impact Model
The County’s Development Impact Model (DIM) is utilized to project the capital fiscal impacts
that a residential development will place on the county over a 20-year period. Through an
extensive review in 2013/2014, the DIM policy was reaffirmed that the DIM projection would
consider residential capital fiscal impacts and would not consider credits for commercial
components of a development proposal. On June 25, 2014, the Board of Supervisors adopted the
updated DIM for use in FY2014.
The following is a breakdown of the projected impacts per dwelling unit for each capital facility.
Capital facility Town home Apartment
Fire and Rescue $412 $418
General Government $33 $33
Public Safety $0 $0
Library $379 $379
Parks and Recreation $1,332 $1,332
School Construction $11,281 $10,535
Total $13,437 $12,697
Rezoning #02-14 – Heritage Commons
October 22, 2014
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When applied to the proffered residential mix (1,050 apartments and 150 townhouses), the
DIM projects negative capital fiscal impacts of $15,347,400.
The application does not contain a proffered mitigation proposal to address these impacts. This
projection solely considers capital fiscal impacts; operational fiscal impacts are generally much
greater (recent analysis indicates expenses of a residential use exceed $100,000 over 20 years).
Applicant’s Market and Fiscal Impacts Analysis (MFIA)
The applicant has submitted a Market and Fiscal Impacts Analysis (MFIA); authored by S. Patz
and Associates, dated August 2014 (copy is attached to this Staff Report). The applicant’s MFIA
is based on the development’s proposal of 1,200 housing units and 700,000 square feet of
commercial development, including a new Frederick County office building. The 1,200 housing
units include 1,050 apartments and 150 townhouses. The commercial space is modeled based on:
220,000 square feet (county office and developer sponsored building); 380,000 square feet office;
and 100,000 square feet retail. The applicant’s MFIA evaluates on-site and off-site revenue and
expenses at build-out; build-out is projected to occur over a 15-year period. The applicant’s
MFIA projects an annual net fiscal benefit of $3,580,570 at build-out.
There are a number of concerns with the applicant’s MFIA that should be considered when
reviewing the applicant’s MFIA’s conclusions. Many of the MFIA’s assumptions are not directly
tied to a proffered commitment and therefore, do not directly relate to the development proposal.
Some of the concerns associated with the applicant’s MFIA include:
• The applicant’s MFIA presumes the establishment of a new county office building on site, and
associated positive synergies that would be catalysts for on-site commercial and residential
demands. This County office building concept would represent 1/3 of the proposed commercial
use. A new County office building envisioned for the site is a speculative venture on the part
of the applicant. If the County building does not materialize, the demand for office and retail
will be significantly hindered.
• The applicant’s MFIA models a development scenario that is not proffered. The proffer does
not guarantee that any taxable commercial land uses will be constructed, yet the MFIA projects
significant revenue generation from these commercial uses.
• The applicant’s MFIA states that, “at best, Heritage Commons can attract 25,000 square feet of
office space per year,” which results in a 15+ year build out (page 37 of MFIA). This statement
further clarifies that the commercial land use is speculative, and therefore, may take over 15
years to be fully realized.
• The applicant’s MFIA states that apartment unit rents would target household incomes of
$40,000 (page 27 of MFIA). Yet, the MFIA calculates off-site revenues reflective of on-site
residents earning an average of $65,000 (page 38 of MFIA). It might also be noted that the US
Census indicates the average wage in Frederick County in 2014 was $40,117. The MFIA
projects that the residential component of the project could be developed and occupied before
2018 (page 30 of MFIA). The MFIA states that the commercial land use would take more than
15 years to achieve build-out. Therefore, residential uses would dominate the site for many
years prior to commercial build out and revenue recovery.
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October 22, 2014
Page 10
• The applicant’s MFIA is based on a phasing plan, including three five-year phases to add
residential and commercial in a fiscally balanced approach over a 15-year period. The proffer
does not adhere to this MFIA modeled three phase approach. In fact, the proffer enables all
residential units to be constructed within the first six years, with the applicant only committing
to obtain building permits for 100,000sf of commercial area.
• The fiscal values are based on build-out, which is projected to be in 15 years. The MFIA fails to
discuss the negative fiscal realities if the housing units are front loaded (proffer indicates a
residential build-out within no sooner than six years), and commercial fails to materialize. The
proffer does not link residential and commercial development; one can occur without the other.
• The MFIA uses an apartment Student Generation Ratio (SGR) of .1, while the County’s DIM
uses a SGR of .242. The DIM uses the County’s average SGR for new apartments over the past
eight years. The applicant has stated that this lower SGR rate is due to the construction of
market rate multifamily units, however; market rate units are not proffered.
• The MFIA utilizes a Cost Per Pupil value of $5,845 (table 20), while the Frederick County
Public School’s budget is based on a Cost Per Pupil value of $9,773.
• Also see attached “ MFIA and Proffer Analysis” table.
Presuming the applicant’s MFIA revenue projections are accurate, updating the MFIA to reflect more
realistic residential costs (SGR and Cost Per Pupil) results in a Net Fiscal Benefit of $2,335,866 at
build-out, but this projection would only be achieved when the site was fully developed (1,050
apartments, 150 townhouses, and 700,000 square feet commercial uses).
The failure of the proffer to phase the development process as described in the MFIA, and outlined
below, will result in significant negative fiscal impacts until such time as the site is fully developed.
Traffic Impact Analysis
The Traffic Impact Analysis (TIA) on file from the previously approved application (Russell 150)
projects that the development of 294 single family attached residential units, 264,000 square feet of
office use, and 440,450 square feet of retail use would generate 23,177 vehicle trips per day. The report
was developed with primary access to the project to be via the proposed western extension of Airport
Road which would extend into the City of Winchester via East Tevis Street extended. A secondary
access point was modeled from the project onto Route 522. However, the applicant has proffered this
second point of access as a potential temporary connection with an interparcel connection to the
adjoining property to the south being preferred and the ultimate solution. The continuation of East Tevis
Street from the property to Route 522 was not modeled in the TIA.
The TIA concludes that the traffic impacts associated with the Russell 150 application are acceptable
from MFIA page 70
Phasing By Use 1st 5 Yrs. 2nd 5 Yrs. 3rd 5 Yrs. Total
Apartment Units 300 375 375 1,050
Townhouse Units 100 50
150
Commercial Square
Feet 50,000 25,000 25,000 100,000
Office Square Feet 100,000 175,000 175,000 450,000
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October 22, 2014
Page 11
and manageable. It should be recognized that with the exception of the Route 522/50/17 intersection
with the Interstate 81 ramp, a level of service “C” is achieved. The above noted intersection is currently
operating at a level of service C(F). When the 2010 background is added this intersection is projected to
operate at a level of service D(F). The inclusion of the 2010 build-out information results in a level of
service D(F). *(*) represents AM(PM) LOS (level of service).
Based upon the current proffers of 1.2 million square of retail, office, and industrial this project will
need to complete a traffic study under Chapter 527 of the State code.
Transportation Approach
The previous application, as noted on the companion document which compares the two proffer
packages, included detailed proffers which dedicated right-of-way and fully constructed Warrior Drive,
Airport Drive Extended, East Tevis Street Extended, and the Flyover Bridge on I-81. These items were
funded through the creation of a Community Development Association or CDA.
Staff Note: In the time since the previously approved development began to experience
difficulty, the County has (of its own volition), secured in excess of $8,000,000 in state
funds to match with private dollars to aid in meeting these proffered obligations. This
revenue sharing effort continues to be available to the Heritage Commons applicant should
they elect to assume responsibility for the private share as Russell 150 proffers had
committed. The funds could be returned to VDOT in the event that the applicant elects not
to utilize the funding.
The applicant’s proposed proffer package relies upon revenue sharing funding procured by Frederick
County and an agreement between the applicant and Frederick County for providing matching funds
that does not yet exist. This agreement is being worked on, but is not in place.
The commitment of capital in the amount of $3,500 per residential unit, for an approximate total of
$1,000,000, has been removed along with the commitment to bicycle facilities along the roadways.
Finally, based on the GDP and the new written proffers it would appear the applicant’s commitment to
connecting Warrior Drive to the south, while improved from the previous proffers, still leaves much
room for uncertainty.
4) Proffer Statement
– Dated September 6, 2013; revised August 7, 2014, September 24, 2014,
October 9, 2014:
Executive Summary: The applicant has proffered a GDP (Generalized Development Plan) (Exhibit A)
for the purpose of identifying the general road layout and landbays within the development.
1.
The applicant has proffered a number of ordinance modifications with this rezoning application.
The R4 Zoning District allows an applicant to modify Zoning Ordinance requirements so that
they may tailor the development to meet their needs. Below is an outline of the requested
Design Modification Document
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October 22, 2014
Page 12
modifications contained within “Exhibit B” with staff’s comments:
• Modification #1 – Proffered Master Development Plan. The applicant is requesting to provide
a GDP in lieu of a MDP (Master Development Plan). The MDP would come before the
Planning Commission and the Board of Supervisors as an informational item at a later time.
• Modification #2 – Permitted Uses. The applicant is requesting to mix commercial and
residential land uses within the same structure. “The mixed-use commercial/residential land
bays identified on the proffered Generalized Development Plan are slated for dense urban
commercial and residential land use, which may include commercial and residential land uses
that are located within the same structure or within connected structures”.
Staff Note: Modification #2 states that “no M1 (light industrial) uses will be permitted”,
this is contrary to the applicant’s landbay breakdown table.
• Modification #3 – Mixture of Housing Types Required. The applicant is requesting a
modification from the requirement that no more than 40% of the residential areas may be used
for housing other than single family (multifamily, townhouses, etc). The applicant is requesting
to utilize 100% of the residential area for single family attached (townhouses) and multifamily
residential units.
• Modification #4 – Residential Density. The applicant is requesting a modification from the
maximum residential density of four units per acre. The applicant is requesting to utilize the
densities specified in the RP District for townhouses (10 units/acre) and multifamily residential
(20 units/acre).
This area is slated for high density residential land uses in the Comprehensive Plan with
a density of 12-16 units/acre; therefore, the requested modification is in conformance
with the Comprehensive Plan.
• Modification #5 – Commercial & Industrial Areas. The applicant is requesting a modification
from the requirement that commercial or industrial uses may not exceed 50% of the gross area
of the total planned community. The applicant would like the ability to exceed the commercial
area beyond 50% of the project.
50% of the project would be 75.2 acres, the maximum commercial acreage shown under
the applicant’s proffered landbay breakdown table is 113.48 acres and the minimum
would be 53.18 acres.
• Modification #6 – Open Space. The applicant is requesting a modification from the minimum
30% open space requirement. They are requesting that a minimum of 15% of the gross area of
the development and 100% of the Buffalo Lick Run Stream Valley area be designated as open
space.
The decrease of open space from 30% to 10% seems excessive. The minimum open space
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October 22, 2014
Page 13
for B2 zoned developments is 15% and the minimum for mixed residential development is
30%. The justification for the modification states that rooftop green spaces and
amenities could be provided, however, there are no proffers or guarantees that these types
of amenities will be provided. This modification has the potential to create a community
with no outdoor areas for recreation, which is contrary to the intent of the R4 residential
planned community.
• Modification #7 – Buffers and Screening. The applicant is requesting a
modification/elimination from the requirement for buffers between the internal uses (uses within
the commercial and residential landbays). The applicant is proposing to provide perimeter
zoning district buffers where required.
The elimination of buffers enables residential uses (i.e. apartment building) to be fronted
on a street directly across from a commercial use, which creates more of an urban
setting.
• Modification #8 – Road Access. The applicant is requesting a modification from the
requirement that all streets within the planned community shall be provided with a complete
system of public streets. The applicant is requesting that all major collector road systems
identified in the Comprehensive Plan shall be public streets, but that all other streets within the
development may be private. They are also requesting a modification to allow them to exceed
the maximum distance a residential structure may be located from a public road.
Applicant should provide a commitment that the Major Collector Roads will be
constructed by the applicant reflective and consistent with the MCR design as a complete
street.
• Modification #9 – Phasing. The applicant is requesting a modification/elimination from the
requirement that a schedule of phases be submitted. The ordinance requires an applicant to
specify the year the phase will be completely developed.
The applicant has proffered a phasing schedule that states that the applicant would need
to apply for and receive a building permit for 50,000sf of commercial in order to
construct the first 300 multifamily units. The applicant would need to have a Certificate
of Occupancy for the 50,000sf of commercial area prior to obtaining permits for
applying for the 600th or greater multifamily units. The applicant would need to apply
for and receive permits for an additional 50,000sf of commercial prior to obtaining
permits for the next 600 multifamily units. The proffer also addresses that a certificate
of occupancy must be obtained for the 50,000sf but there is no trigger associated with it.
As written, the proffer would allow the construction of 599 multifamily units and 184
townhouses with the construction of only 50,000sf of commercial area. This is not
consistent with the Patz suggested phased approach to maintain economic balance, nor
does this phasing proffer guarantee to offset impacts from residential uses. As written,
the phasing proffer provides little if any benefit to the County.
• Modification #10 – Height Limitation and Dimensional and Intensity Requirements. The
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October 22, 2014
Page 14
applicant is requesting a modification of the maximum height of office buildings and hotel
buildings. The current height maximum for those structures is 60’. The applicant is requesting
that commercial buildings, retail buildings, office buildings, hotel buildings, and shared
commercial/residential buildings may be constructed up to 80’ in height, not including
architectural features and antenna structures. The applicant is also proposing a modification
from the current floor-to-area ratio of 1.0 to 2.0.
o Proximity to the Airport may be of concern.
o Staff would also suggest that architectural features and antenna structures not be
entirely omitted from the height maximums. It may be appropriate to establish a
secondary height limitation for architectural features and antenna structures so as to not
exceed the building’s height by more than 15 feet.
• Modification #11 – Multifamily Residential Buildings. The applicant is requesting a
modification from the setback requirement for multifamily buildings. The ordinance currently
requires that buildings over 60’ be set back one foot for every foot over 60 up to the maximum
height of 80’. The applicant is proposing that all buildings may be constructed within 20’ of
public or private street systems serving the community.
This results in a more urban setting which is consistent with that envisioned in
Comprehensive Plan.
• Modification #12 – Modified Apartment Building. The applicant is requesting a modification
to the dimensional requirements for Garden Apartments (165-402.09I). The garden apartment
housing type has a maximum of 16 units per structure, a height of 55’, and setbacks of 35’ from
public roads, 20’ from private roads, 20’ side and 25’ rear. Building separation per ordinance is
20’ or 35’ depending on the orientation. The applicant is proposing a modification that would
allow for up to 64 units per structure, a height of up to 80’ and setbacks of 20’ from public
roads, 10’ from private roads, and 15’ side and rear setbacks. Proposed building separation is
15’.
This modification results in more urban standards (density and setbacks) similar to
those envisioned for UDA (Urban Development Area) Centers.
2.
The applicant has proffered a mix of residential types (single family attached, multifamily, gated
single family attached, gated multifamily), shared residential and commercial structures, office,
retail and industrial uses There are seven land bays and a Buffalo Lick Run landbay (the
Buffalo Lick Run landbay consists of 12.35 acres of preserved environmental features).
Uses, Density and Mix:
Residential Uses: Landbays 3, 5 and 7 total 93.59 acres and permit 90-95% of the total landbay
to be utilized for residential purposes. Utilizing the maximum residential percentage allowed
within these landbays the total acreage for residential cannot exceed 84.7 acres (minimum of
24.4 acres).
Commercial Uses: Landbays 1-6 total 83.95 acres and allow for a range of 20% to 100% of the
landbay to be utilized for commercial uses. Utilizing the maximum commercial percentage
Rezoning #02-14 – Heritage Commons
October 22, 2014
Page 15
allowed within these landbays the total acreage for commercial cannot exceed 59.5 acres
(minimum of 47.78 acres).
Industrial Uses: Landbay 7 consists of 53.95 acres and allows for 100% of the landbay to be
utilized for commercial or industrial uses. The introduction of commercial or industrial uses
within landbay 7 is inconsistent with the Comprehensive Plan.
Based on the landbay breakdown table it is reasonable to expect that up to 56% of the
land area within the Heritage Commons development could develop with residential land
uses. The previously approved proffers for Russell 150 (which are the approved proffers
for the site) limited residential uses to 35% of the site.
The proffers place a cap of 1,200 residential units on the development. There will be a
maximum of 184 townhouse units within the development; the townhouses are only permitted
to develop within landbay 7. The remaining units will consist of multifamily units. There is no
cap or triggers on the commercial square footage within landbay 7.
The proffer states that there is no square footage cap within landbay 7, which is the
largest landbay within the landbay breakdown table. This is contrary the portion of
proffer 4 (multi-modal transportation improvements) that state that there will be no more
than 1.2 million square feet of commercial and industrial uses on the Heritage Commons
site.
3.
The proffer states “Applicant/Owner makes no monetary proffers to address any Frederick
County capital facilities impacts. The proposed uses within Heritage Commons will yield a net
positive capital benefit to Frederick County. As a result, the capital benefit realized by Frederick
County will eliminate any anticipated expenses that might be owed to it by Applicant/Owner”.
Capital Facility Impacts:
The 2005 rezoning proffered a monetary contribution in the amount of $3,000 per
residential unit for the public school system, a lump sum contribution in the amount of
$10,000 for Fire and Rescue Services, a $2,500 HOA startup fund, and one million for
the general transportation fund ($3,500 per unit); the previous proffer included over
$1.8 million in cash contributions. These monetary contributions have all been
removed from the new rezoning application.
The applicant’s Market and Fiscal Impact Analysis (MFIA) by S. Patz & Associates
shows a positive fiscal gain in the amount of $3,580,570; however, the Patz report
utilizes full build-out of the commercial and residential landbays to achieve this figure
(15+/- years, 1,200 market rate residential units and 700,000sf of commercial). (The
Report also neglects to accurately capture tax rates and other multipliers as noted in
correspondence dated August 29, 2014). The phasing proffer proposed by the
applicant falls grossly short of achieving what their model is utilizing to achieve the
positive fiscal gain. The applicant is also not proffering market rate multifamily units
as indicted by the analysis. The development impact model projects a negative impact
of $13,062 per single family attached unit and $11,339 per multifamily unit on County
Rezoning #02-14 – Heritage Commons
October 22, 2014
Page 16
capital facilities. Therefore, based on the unit cap of proffer 2C, the potential impact
the residential units will have on County facilities is $13.9 million. The development
should not utilize the future potential tax contributions of the commercial landbays to
offset the residential landbays without guaranteed phasing of commercial uses to be
built in conjunction with the residential uses.
4.
The applicant agrees to install the road network depicted on the GDP and in an alignment and a
form that meets VDOT geometric design standards and has provided a typical cross section of
the roadway expected. The applicant further states they will participate in a Revenue Sharing
Agreement and the funding for the installation of the road network.
Multi-Modal Transportation Improvements:
Warrior Drive is depicted on the GDP as a future road and the applicant proffers to dedicate
right-of-way at the time the exact alignment of Warrior Drive has been established. This
dedication will occur when the connecting section of Warrior Drive has been dedicated and
constructed by the owner of the property to the south.
The previous application, as noted on the companion document which compares the
two proffer packages, included detailed proffers which dedicated right-of-way and fully
constructed Warrior Drive, Airport Drive Extended, East Tevis Street Extended, and the
Flyover Bridge on I-81. These items were funded through the creation of a Community
Development Authority or CDA. The new rezoning proposes to change the method of
funding to revenue sharing but does not guarantee construction if revenue sharing fails
as the previous proffers did with the CDA.
5.
The applicant will be utilizing Low Impact Development (LID) and Best Management Practices
(BMP). A no-disturbance easement will also be provided within the Buffalo Lick Run Stream
Valley.
Stormwater Quality Measures:
6.
Recreational amenities will be provided within Landbays 5 and 7 and identified on the MDP.
The applicant will provide walking trails and sidewalks within the community and a 10’ wide
path along the Buffalo Lick Run Stream Valley. The applicant may also install an additional
10’ wide path along Buffalo Lick Run which, if constructed, would be owned and maintained by
the HOA, but available for public access.
Recreational amenities:
Recreational amenities are already an ordinance requirement because of the housing
type and lot size. Sidewalks are currently required along both sides of all streets. Only
the inclusion of the trail goes beyond ordinance requirement.
7.
The GDP plan shows the general area and location of the roads to serve the property, exact
locations will be based on final engineering. Acceptance of the proffer statement constitutes
approval of the public uses, facilities, and utilities and their ability to be developed within the
landbays.
Comprehensive Plan Conformity:
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October 22, 2014
Page 17
The land uses shown within landbays 3 and 7 are not supported by the 2030
Comprehensive Plan, and deviations to landbay 7’s planned residential land uses may
impact the adjacent and recently approved Madison Village residential development. The
proffers show landbay 3 with mixed residential and commercial land uses, the
Comprehensive Plan designates this area for employment land uses. The proffers show
landbay 7 (53.95 acres) with the ability to develop with 100% commercial or industrial
uses. The Comprehensive Plan shows the entire area that encompasses landbay 7 as
high density residential. Introducing commercial or industrial uses into landbay 7 is not
supported by the 2030 Comprehensive Plan.
8.
Applicant/Owner acknowledges that a PPEA has been submitted to Frederick County to provide
for a ten-acre tract of land located in landbay 4 to be used for the purposes of constructing and
installing a County administration building. Also pursuant to the terms of said PPEA, an option
has been given to Frederick County to purchase up to a maximum of eight additional acres at a
market rate price-per-acre to be agreed to by and between the parties. Applicant/Owner intends
to honor the terms of the PPEA for a term to allow time for Frederick County and
Applicant/Owner to enter into a binding agreement to construct and/or to sell property as it is
anticipated that negotiations to reach a final agreement may occur beyond the time of the
approval of the rezoning. Applicant/Owner proffers not to convey to any other party, other than
to Applicant/Owner and/or their agents and assigns, the portion of the property and option
property which is the subject of the PPEA to allow for the installation of the Frederick County
Government Center for a period of one year from the date of the approval of the rezoning. If no
formal agreement is entered into within said time period then each party will be released from
any agreement or obligation under the terms of said PPEA and the property which is the subject
of the PPEA and the option property shall be used and made available for development as B-2
zoned property within the Heritage Commons development.
PPEA
The need for this proffer is unclear; the County has not entered into any commitments or
agreements with the property owner to construct a new County administration building
on this property.
9.
No more than 400 units can be built within the first two years of the development (first year
commencing on the date of the rezoning if approved). The remaining residential units will be
installed with no more than 400 units within the following two-year term, and the remaining
residential units commencing no earlier than two years after the completion of the 800th unit.
Phasing:
The applicant has proffered a phasing schedule that states that the applicant would need to apply
for and receive a building permit for 50,000sf of commercial in order to construct the first 300
multifamily units. The applicant would need to have a Certificate of Occupancy for the
50,000sf of commercial area prior to obtaining permits for applying for the 600th or greater
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October 22, 2014
Page 18
multifamily units. The applicant would need to apply for and receive permits for an additional
50,000sf of commercial prior to obtaining permits for the next 600 multifamily units. The
proffer also addresses that a certificate of occupancy must be obtained for the 50,000sf but there
is no trigger associated with it.
As written, the proffer would allow the construction of 599 multifamily units and 184
townhouses with the construction of only 50,000sf of commercial area. This is not
consistent with the S. Patz & Associates report dated August 26, 2014 which suggests a
phased approach to maintain economic balance, nor does this phasing proffer guarantee
to offset impacts from residential uses. As written, the phasing proffer provides little if
any benefit to the County.
SUMMARY FROM THE 09/03/2014 STAFF APPLICATION BRIEFING:
On September 30, 2014 a Staff Application Briefing was held for the Heritage Commons rezoning.
Following presentations by Staff and the Applicant, the Planning Commission and Board of Supervisors
discussed the project. A Commissioner commented that there was considerable financial analysis
shown by the applicant which was based on three five-year periods of proposed development; however,
this development is not tied to a proffer. It was further stated that if the development proceeds
differently than the assumptions made by the applicant’s economist and the numbers are thrown off, it
creates doubt about what the benefits will be to Frederick County. Commissioners questioned whether
a new TIA was submitted with this development and whether the new entrances on Route 522 were
modeled. It was also commented that the County is losing roads compared with what the original
application had guaranteed and that Frederick County was losing a lot. It was noted that the taxpayers
would have to bear the burden of constructing what the applicant does not.
A Board of Supervisors member stated that without the commercial development, this project is not a
winning situation for Frederick County. It was further commented that the applicants were quoted in
the newspaper stating the county office building would be a cornerstone in bringing in commercial
development, and that the applicant shouldn’t be basing the project on that. It was questioned whether
or not the development could survive and do what it needs to commercially, if the relocation of the
county office building does not transpire. If it can’t, the applicant needed to reconsider.
Commissioners raised concern regarding the land uses shown in Landbay #3, the Comprehensive Plan
earmarked that particular area as an employment center and this application is designating it as
residential. It was further stated that this was not a good location for residential because Warrior Drive
is running north-south parallel to I-81 and the area between that road and I-81 should be commercial.
Likewise, he believed Land Bay #7 should be the same way, as well.
Commissioners stated that this will be a community of 2,500-3,000 plus people, which results in
considerable traffic and lots of impacts. If the development remains solely residential, it results in
considerable impacts to Frederick County taxpayers and there is no hook with the developer to get the
commercial in there. Commissioners expressed concern there was no new TIA (traffic impact analysis).
This proposal is an intensification of what was originally envisioned for the site; it is certainly different
in its composition. They felt it was necessary to get a grasp of what that means from an impact
perspective; not just fiscally, but from a brass tacks traffic perspective to assess just how effective these
improvements will be and whether what is committed to at the end of the day is adequate for Frederick
Rezoning #02-14 – Heritage Commons
October 22, 2014
Page 19
County. Commissioners believed a new TIA is important with this new application. Staff responded
that there were things the applicant could do through proffers to keep themselves from having to do a
new TIA. If the balance for trip generation remains the same as the Russell 150 TIA, the project may
still be okay with the existing TIA. Commissioners remarked that if a new TIA is not done, it might not
be a bad idea to at least do some type of addendum for the new project and what the maximum
assumptions might be.
One Commissioner referred to the applicant’s comment about Warrior Drive going to nowhere, and
stated that they believed Warrior Drive was needed. Warrior Drive is dead-end right now, but the
reason for that is it has not developed any further. It was stated if this project is developed without
Warrior Drive, then Warrior will never tie together correctly. Commissioners strongly believed Warrior
Drive needed to be incorporated within this project.
Referring back to the discussion of the TIA, Commissioners stated there will be a considerable amount
of traffic generated with this development. The demographics of this new proposal were significantly
different than those in 2004 and it would be to the developer’s benefit to come up with a new analysis
based on the current traffic. It was noted that if a motorist is trying to access a major highway at this
location, there are only two connection points; if 3,000 vehicles are going to two connection points and
other traffic is going in and out of the development, there will be a considerable volume of traffic;
concern was expressed about this detail, along with Warrior Road. It was further stated that old
commitments need to be examined and made sure they are incorporated into the new project.
It was suggested that the developer compile a list of all the comments made during the briefing because
the impacts of this development have not nearly been mitigated, even close to what they needed to be.
STAFF CONCLUSIONS FOR 11/05/14 PLANNING COMMISSION MEETING:
The land uses shown with the Heritage Commons rezoning application are not consistent with the 2030
Comprehensive Plan. Additionally, the application does not adequately address the negative impacts
associated with this request; in particular, the negative transportation and fiscal impacts. The application
also fails to comply with Chapter 527 transportation requirements, which would result in a conflict with
the Code of Virginia. Throughout the report, Staff has noted a number of inaccuracies and concerns
that are present with this rezoning application. Confirmation of the issues identified in the staff report,
and any issues raised by the Planning Commission, should be addressed prior to securing a favorable
decision from the Planning Commission.
Following the required public hearing, a recommendation regarding this rezoning application
to the Board of Supervisors would be appropriate. The applicant should be prepared to
adequately address all concerns raised by the Planning Commission.
CITY OFWINCHESTERSubdivision
WINCHESTERREGIONAL AIRPORTSubdivision
AIRPORTBUSINESS CENTERSubdivision
PRESTONBUSINESS PARKSubdivision
PRESTONPLACESubdivision
WINDY HILLSubdivision
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64C 2 3364C 2 3464C 2 36
64C 2 3764C 2 38
64C 2 4164C 2 42
63 A 120
63 A 121
63 A 125 64C 2 764C 2 8
64C2 12
64C 2 13 64C 2 2664C 2 27 64C 2 2964C 2 3064C 2 31 64C2 32
63 A121A
63 A 119 64C A 1664C A16A 64C2 14
64C 2 15
64C 2 16
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64C 2 1764C 2 1864C 2 1964C2 20
64C 2 2164C 2 22
64C2 23 64C2 24
63 A 122 63 A 123
64C A13A 64C A 14
64C A 15
63 A122A
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64 A 15
64 A 45
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64 A 12
64 A 14 64C A 13
64C A 11
64 A45B
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64C 1 15 64 A45K1
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64C A 364C A 4
64BA 9064B A 9264C A 164C A 2
63 A 150
64 A 10
64B 4 39
64 A 45E
64B A 8964B A4 91
64B A 8664BA 85
64B A54A
64B A 54
64B 4 3564B 4 3764B 4 38
64B 4 1164B 4 13 64BA 87
64B A87A
64B A 88
64B A 84 64B A1 58
64B A 56
64BA 57
64B A54B
64B A 55
64B 4 2964B 4 30
64B 4 32 64B 4 264B 4 14
64B 4 1
64B A 83
64B A 6364B A 61
64B A 5964B A 60
64B A 4664B A 47
64B A 49
64 A 1164B 4 F
64B A 73
64B 4 H64B 425J64B 4 26
64B 4 A
64B 4 2064B 4 22
64B A 81 64B A 78
64B A 8264B A 3 79
64BA 68
64B A 6664B A 67
64B A 64
64B A 65
64B A 40
64B A 4164B A 43
64B A 44
64B A 4564B A 4864B 4 D64B 4 E 64B A 80 64B A 7564B A 7664B A 77
64B A 38
64B A41A
64 A10A 64B A 74
64B A 3664B A 37
64B A33B
64B A 39
64 A 9
64 A 9D
64 A 9C
64BA 72
64B A33A
64B A 34
64 A 88
64B A73B 64 A 9B
64 A 9E
64B A 31
64B A 32
64B A 30
64B 2 164B 2 264B 2 3
64 A 5 64 A 7
64 A 8
64B A 21
64B A 2364B A 24
64B A 2564B A 28 64B A 22 64 1 A2
64 A A464 1 A164B A 20
64B A 26
64 A 4H 64 A A
Applications
Parcels
Building FootprintsB1 (Business, Neighborhood District)
B2 (Business, General Distrist)
B3 (Business, Industrial Transition District)EM (Extractive Manufacturing District)HE (Higher Education District)
M1 (Industrial, Light District)
M2 (Industrial, General District)MH1 (Mobile Home Community District)
MS (Medical Support District)
OM (Office - Manufacturing Park)
R4 (Residential Planned Community District)
R5 (Residential Recreational Community District)
RA (Rural Area District)
RP (Residential Performance District)
I
Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: August 15, 2014Staff: cperkins
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REZ # 02 - 14Heritage Commons, LLCPINs:63 - A - 150, 64 - A - 10,64 - A - 12
0 840 1,680420 Feet
kj
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Senseny / Eastern FrederickUrban Area StudyLand UseAdopted by BOS on June 13, 2012
Study Area
!(Proposed Interchanges
Future Rt 37 Bypass
TransportationProposedChanges
New Major Arterial
Improved Major Arterial
New Minor Arterial
Improved Minor Arterial
New Major Collector
Improved Major Collector
New Minor Collector
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Ramp
Trails
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B2 / B3
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High-Density Residential, 12-16 u/a
Mixed-Use / High-Density Residential, 12-16 u/a
Institutional
Urban Center
Rural Area
Interstate Buffer
Park
Natural Resources & Recreation
Landfill Support Area
kj Future Route 37 ramps to be adjusted to align with future relocated Valley Mill Road.´0 0.85 1.70.425 Miles
Heritage Commons – VDOT Comments (10/1/14) 2014
1
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Intro Paragraph
(not numbered)
VDOT is NOT satisfied that the transportation
proffers offered in the Frederick County Center,
LLC Rezoning Application dated September 5,
2013, revised September 18, 2014 address
transportation concerns associated with this
request. The lack of detail in this rezoning
request raises numerous questions that will
need to be addressed prior to VDOT support of
this rezoning request.
Applicant responded that VDOT’s comment is based on a
lack of review and knowledge of the totality of the
transportation improvements which are being provided as
a result of revenue sharing agreements between Frederick
County and VDOT. These improvements are being
directed by private engineering firm which have been
engaged by Frederick County and VDOT itself and which
have determined that the road network is more than
adequate to address not only traffic generated by the
Heritage Commons site but regional traffic. The applicant
suggested that if VDOT would further review its records
and its divisions which are part of this significant road
project it would be able to report to Frederick County that
there are no transportation impacts that are not
addressed as a result of the proposed rezoning.
N/A
Comment # 1 The previous August, 2014 review comment
#1 has not been addressed by the revised
proffers. There is still no indication of the
level of commercial / office development to
be proposed on the property. Proffer #4 has
been revised to include justification for not
updating the previous traffic study completed
on the project, with the argument that the
current proposed uses will reduce the
amount of traffic generated from the site
(compared to the initial 2005 Russell 150, LC
rezoning). The updated proffer also states
that VDOT has confirmed that the proposed
road network indentified on the GDP is
sufficient to address the traffic generated by
the Heritage Commons development and
additional volume resulting from the Tevis
Commercial density is limited by Ordinance. After
examination of VDOT and Frederick County’s studies, as
well as prior traffic studies commissioned for this
property, it is submitted that the proposed road network
is more than adequate to address any impacts generated
by this proposed rezoning.
Not all responsive
changes made.
The applicant has
placed no cap on the
commercial square
footage within the
development and
therefore it cannot be
verified if the current
proposal will have the
same traffic volumes
depicted in the 2005
TIA for Russell 150.
Heritage Commons – VDOT Comments (10/1/14) 2014
2
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Drive extension. However, the current
proposed internal road network was
developed utilizing the previously known
development intensity associated with the
property. In order to confirm the adequacy of
the current road design, the proposed
development intensity for the commercial
component of the rezoning is required.
Comment #2 Proffer #4 has been revised to include
language that the “Applicant does agree to
enter into an agreement with Frederick
County to provide for the payment of
Frederick County’s portion of the Revenue
Sharing Agreement with VDOT” for the road
improvements associated with the property
(including Warrior Drive). However, it is
unclear why the proffer still indicates that the
applicant will only be dedicating a portion of
the Warrior Drive right-of-way. We
recommend that the proffer is updated to
include dedication and construction
reimbursement of the entire length of
Warrior Drive to the southern property line.
With regard to Warrior Drive, the current revenue
sharing projects (there are 2) are for the road networks
depicted on the GDP. There is no revenue sharing
agreement in place; therefore, the Applicant has
proffered to dedicate Warrior Drive in a location which is
agreeable to not only the Applicant but also Frederick
County and VDOT at such time as either the remainder of
the property is developed or there is a connection to a
developed Warrior Drive on the southern boundary of
the Heritage Commons site.
Not all responsive
changes made.
Comment #3 Proffer # 8, Phasing, has been updated to
provide an initial construction phasing
schedule for the multifamily residential and
commercial uses. We recommend that this
proffer is updated to also incorporate the
timing of the transportation improvements
related to development construction. This
will ensure that the necessary roadway
The timing of the road construction is depicted by
revenue sharing agreements by and between Frederick
County and VDOT. The applicant/owner is not a party to
said agreements and, therefore, does not control the
timing of such.
Not all responsive
changes made.
Heritage Commons – VDOT Comments (10/1/14) 2014
3
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
infrastructure is in place to accommodate the
development phasing.
Comment #4 An updated Generalized Development Plan
addressing the previous August 2014 review
comment #3 was not included with the
revision proffer submission. Please provide.
The GDP that has been submitted is the one that has
been provided to the Applicant by the engineering firm
working for Frederick County and VDOT.
Not all responsive
changes made.
Frederick County and
VDOT are not in
control of the
applicant’s GDP nor
did any engineer
under contract by the
County design the
applicant’s GDP.
Comment #5 The revised proffers and current Generalized
Development Plan do not address the
previous September 2013 VDOT review
comments. Please update the documents
accordingly or provide comment responses.
The applicant submits that said comments are included
as updated comments by VDOT and are, therefore
responded to with this correspondence.
Not all responsive
changes made.
Comment #6 The rezoning application proposes to rezone
the 150.59 acre property from B2 – General
Business District and RP – Residential
Performance District to R4 - Residential
Planned Community District. The proffers
provide a cap on residential development at a
maximum of 1,200 units, of which 150-184
will be townhomes and the remaining units
developed as multifamily. However, the
proffers do not provide a cap for commercial
/ office development. Based on the Land Bay
Breakdown table provided in the proffers, the
commercial / office component will consist of
53 to 70 acres of the overall development.
The applicant submits that the hypothetical calculations
of commercial appear to be correct and that it has
previously responded to the potential impacts to the
transportation network.
Not all responsive
changes made.
The applicant has
placed no cap on
their commercial
square footage.
Applicant is
requesting a
modification to
increase the FAR on
the property from 1.0
to 2.0 which would
double the allowable
Heritage Commons – VDOT Comments (10/1/14) 2014
4
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Taking into consideration the F.A.R.
modification that is being requested with the
application to increase the permitted F.A.R. to
2.0 (B2 zoning permits a max F.A.R. of 1.0),
the development could hypothetically permit
up to 6 million square feet of commercial /
office use. In order to evaluate the project’s
potential impact on the local and regional
road network, maximum floor areas need to
be provided for commercial / office use in
each of the proposed land bays.
square footage.
Comment #7 The proffers do not provide a clear
description of the property owner’s /
developer’s responsibilities in providing the
necessary transportation improvements
associated with the property. VDOT
recommends additional proffers be added to
the application that describes the individual
transportation improvements (similar to the
original 2005 Russell 150, LC rezoning) and
states that the owner / developer shall
construct said improvements prior to the
issuance of a building (or occupancy) permit
for the proposed uses within the property or
determine a percentage of construction cost
for each transportation improvement to be
escrowed by the owner / developer for use by
the county in a revenue sharing agreement
prior to the approval of a site plan on the
property.
The road and bridge network is part of revenue sharing
agreements. In point of fact, the road and bridge
network is part of revenue sharing agreement by and
between Frederick County and VDOT, is under the
control of Frederick County and VDOT and is most
decidedly not under control of the Applicant other than
the need at some point for the approval of the applicant
of a road network to be installed on its property. The
applicant anticipates working with Frederick County and
VDOT to facilitate the development of the transportation
network provided the rezoning which is currently
pending is approved. Said rezoning, if approved, will
allow for the necessary funding to allow the applicant to
pay for Frederick County’s share of the revenue sharing
agreements.
Not all responsive
changes made.
Comment #8 VDOT recommends that the Generalized
Development Plan included in the rezoning
Comments to the GDP by VDOT should be directed to
Frederick County, its engineer and, ironically, VDOT
Not all responsive
changes made.
Heritage Commons – VDOT Comments (10/1/14) 2014
5
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
application be revised as follows:
• Provide the maximum commercial retail
and office floor area and residential unit
types in each land bay.
• Provide the right-of-way width and
typical cross-section for the proposed
roadways within the development in
accordance with the county
Comprehensive Plan.
• Extend Warrior Drive to the southern
property line.
• Update all access arrow labels to read
“Potential Access Point”. The location
and type of access to be permitted will be
in accordance with VDOT’s Access
Management Design Standards and will
be reviewed during the Site Plan
submission.
• Indicate the necessary frontage and
entrance intersection improvements
along Route 522 as required per the
proposed trip generation of the
development.
which is in control of all layout and design aspects and
indeed the construction project as a whole for the major
transportation network across the Heritage Commons
property and adjoining property. To the extent VDOT
believes that there needs to be additional description
and detail inserted into the GDP then those comments
should be directed to the parties who are designing and
controlling the design of said road and bridge network,
namely Frederick County, its independent engineers and
VDOT.
Frederick County
(nor any company
contracted by
Frederick County)
did not provide the
applicant with their
GDP.
Potential for
entering into a
revenue sharing
agreement does not
negate the
applicant’s ability to
show necessary
road improvements
within the proffers
or on the GDP.
The County and
VDOT have not
approved the
multiple points of
access on the
applicant’s GDP.
Maximum
commercial and
retail areas have not
been provided.
Comment #9 The request fails to mention how the
proposed development trip generation
References to Warrior Drive have been previously
addressed. The applicant is proffering to dedicate said
roadway at such time as there is a connection to Warrior
No
Comment does not
Heritage Commons – VDOT Comments (10/1/14) 2014
6
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
compares to the previous Russell 150 TIA.
Drive on the southern end of the property and development
on Heritage Commons site warrant she installation of
Warrior Drive.
apply to VDOT’s
comment.
Comment #10 There is not a clear detail (trip counts or
approved site plans, etc.) as to when road
facilities are to be constructed.
There is intentionally no detail or references to approved
site plans because they have not yet been generated and to
the extent and detail plans exist with regard to the road
they are, as referenced above, being controlled, designed
and eventually will be constructed by Frederick County and
VDOT.
Not all responsive
changes made.
Comment #11 The proposed bridge over Interstate 81,
signals, as well as other on-site/off-site traffic
facilities are not clearly identified as being a
responsibility of the developer.
The revenue sharing agreements clearly provide for the
road installation and the bridge as well as related features
to include traffic lights, etc. Those are being directed and
controlled by Frederick County and VDOT.
Not all responsive
changes made.
Comment #12 Are the roadway typical cross-sections/right-
of-way widths to remain as detailed in the
original Russell 150 MDP?
The typical right-of-way/cross-sections, etc. are being drawn
by Frederick County and VDOT as part of the revenue
sharing agreement. It is believed that cross-sections exist as
of the writing of this letter. If it is helpful we would suggest
that a cross-section be included in the proffer submission.
Not all responsive
changes made.
Comment #13 Constructed Warrior Drive needs to be shown
extended all the way to the southern
property line. Warrior Drive is a critical part
of the Frederick County Transportation Plan.
The developer could build it in phases, but it
is a requirement for the streets to be eligible
for acceptance into the Secondary System.
Please see prior comments to references to Warrior Drive.
(Comment #2, #9)
Not all responsive
changes made.
Comment #14 The location shown in Exhibit “A” for Warrior
Drive would cause the most damage to the
The comment made in this paragraph is noted, and the
applicant is sure it will be taken into consideration when
Not all responsive
changes made.
Heritage Commons – VDOT Comments (10/1/14) 2014
7
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Buffalo Lick Run wetlands when the road is
extended as it is shown crossing the widest
section of the wetlands.
Warrior Drive is finally designed.
Comment #15 Land Bay 7:
• The previous TIA addressed this land bay
as being served by a constructed Warrior
Drive in place and therefore the bulk of
land bay traffic would utilize Warrior
Drive as access to destinations into the
city of Winchester. Without a current TIA
the previous “distribution of traffic”
percentages are no longer valid and thus
levels of service have not been corrected.
• There was a proposed entrance to Route
522 (which due to new Access
Management regulations may no longer
be viable) from Land Bay 7 that even with
only 2046 ADT was already at a level “C”
service.
• The eastern inter parcel access point
between Land Bay 7 and 5 does not
appear to align with an identified
roadway system.
• What are the thresholds where
additional access points will be
required? And will the developer be
responsible for constructing them?
• New SARS Regulations may apply to this
development.
There are no site plans available at the time of the filing of
this rezoning. Certainly all of the comments that are
addressed will be subject of site plan and other
development at as such time as Land Bay 7 is submitted for
specific Uses.
Not all responsive
changes made.
Comment #16 Based on the above mentioned concerns, the
dynamics of the potential project traffic
• The applicant submits that in addition to the traffic study
submitted with the rezoning approved in 2005, VDOT has
Not all responsive
changes made.
Heritage Commons – VDOT Comments (10/1/14) 2014
8
VDOT Comment # VDOT Comment
*All comments are verbatim from VDOT’s
comment letter.
Applicant’s Response to VDOT’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
generation and the age of the previous TIA,
VDOT concurs with Frederick County Planning
that these combined issues exceeds the
threshold requirements for a “527” traffic
impact study.
commissioned and has in hand several additional and
updated traffic studies which confirm the adequacy of
the transportation system being proposed by the GDP.
To the extent VDOT and/or Frederick County has any
question or concerns about said traffic studies they
should direct them to themselves as the parties in
control of the design and construction of the
transportation network.
The basic traffic
studies conducted by
VDOT do not model
the applicant’s project
nor do they
incorporate the total
trips anticipated by
this development.
Heritage Commons – FCPS Comments (9/18/14) 2014
1
Frederick County
Public Schools
Comment #
Agency Comments
*All comments are verbatim from FCPS’s
comment letter.
Applicant’s Response to FCPS Comment Agency Comments
Addressed in Proffer?
Comment #1 No cash proffers
Agreed that no cash proffers are provided.
No
Comment #2 Consultant used an impact calculation different
from the County's Development Impact Model.
Agreed that the Impacts analysis utilizes a different
calculation. Applicant will be constructing market rate
apartments and this is why a different student generation
calculation is utilized instead of basing it on actual
numbers from existing projects in Frederick County
No
Comment #3 Calculation uses student generation rates based
on only one existing development in Frederick
County and does not match countywide student
generation data.
Market rate units will have higher rents, younger tenants,
older professionals with a higher than average household
income and therefore fewer school age children.
No
Comment #4 The cumulative impact of this development and
other developments in Frederick County will
require construction of new schools and
support facilities to accommodate increased
student enrollment.
(No Response) No
Comment #5 This development proposal includes a range of
possibilities. The case that generates the most
students is 184 townhouses and 1,016
apartments. We estimate that, in this case, the
development will house 309 students: 81 high
school students, 69 middle school students, and
159 elementary school students.
The school impact models that have been generated from
actual students living in existing apartment stock in
Frederick County have no application to the Heritage
Commons proposed rezoning.
Looking at the market analysis the market rate multi-
family projects are tax positive to Frederick County taking
into account all expenses including, but not limited to,
school expenses.
No
Comment #6 In order to properly serve these additional
students, Frederick County Public Schools would
spend an estimated $3,482,000 more per year
in operating costs (or $2,902 average per unit
per year) and an estimated $12,693,000 in one-
time capital expenditures (or $10,578 average
per unit).
The Impact Analysis report shows that the mix proposed
by the Heritage Commons rezoning generates a net
positive tax generation to Frederick County taking account
all expenses including, but not limited to, the school
expenses incurred by Frederick County.
No
Heritage Commons – Public Works Comments 2014
1
Frederick County
Public Works
Comment #
Agency Comments
*All comments are verbatim from the Public
Work’s comment letter.
Applicant’s Response to Public Works’ Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Comment #1
(9/20/2013)
Refer to the amended proffer statement, page
4, paragraph 4, multi-modal transportation
improvements: Expand the narrative to
adequately describe the road network that will
be installed by the owner. Also, revise the
Generalized Development Plan included as
proffer Exhibit “A” to adequately depict the
road network that will be the responsibility of
the owner outlined on this rezoning application.
For example, the GDP does not clearly indicate
that the bridge over I-81 is the total
responsibility of the owner.
The amended proffer indicates that there will
be a new design and installation that will occur
as a result of a Revenue Sharing Agreement
entered into by and between the Virginia
Department of Transportation (VDOT) and
Frederick County. This statement should be
revised to indicate that this opportunity may be
a potential possibility, but does not relieve the
owner of the ultimate responsibility for
installing the road network ultimately approved
in this rezoning application.
As the Frederick County department of Public Works well
knows, the road network is being designed by Pennoni
Associates, which was engaged to do the work that is the
subject of a cost sharing agreement between Frederick
County and VDOT for not only the road network, which
runs across Heritage Commons, but also connects to the
City’s Tevis Street by bridge over I-81 and also crosses the
property owned by the neighbor (Glaize) to connect to
Route 522 at a traffic lighted intersection.
The applicant and owner are not able to commit to the
exact details of said transportation system until such time
as that design has been approved by Frederick County and
VDOT.
Not all responsive
changes made.
The County is not
designing the roads on
the applicant’s
property, nor have the
county and the
applicant entered into
any agreements.
*Cross sections have
not been proffered by
the applicant.
Comment #2
(9/20/2013)
Refer to Modification #8, Phasing: Phasing will
be critical to the impact of this development on
the services provided by Frederick County.
Without phasing accountability, the actual
financial impact cannot be realistically modeled.
It could conceivably be possible to develop the
entire residential component of 1,200 units
We believe that the revised proffers do address in greater
detail phasing and, in particular, a commitment to the
delivery of 50,000sf of commercial for every 300
multifamily residential units. The applicant further points
out that according to the economic analysis performed by
Patz, the multifamily component as it is proffered as
market rate project will, in fact, have a net positive fiscal
Not all responsive
changes made.
*This project is not
proffered to be
market rate.
*The proffer does not
Heritage Commons – Public Works Comments 2014
2
Frederick County
Public Works
Comment #
Agency Comments
*All comments are verbatim from the Public
Work’s comment letter.
Applicant’s Response to Public Works’ Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
without developing any of the commercial
development. This occurrence would have a
significant negative impact on Frederick County.
impact and as such phasing of same is not warranted. guarantee the
construction of any
commercial, only that
building permits will
be obtained.
Comment #3
(9/20/2013)
Refer to the Impact Analysis Statement:
Provide separate narratives evaluating the
impact of the proposed development on
services provided by Frederick County including,
but not limited to, water, sewer, solid waste
and transportation.
With regard to the impact analysis for water, sewer, solid
waste and transportation, the application has received a
positive comment on the availability of water/sewer
services from the Sanitation Authority. With regard to
solid waste, the Applicant has proffered to install
dumpsters as part of its development, which will through
private service arrangements, dispose of any and all solid
waste,
No
The applicant has not
proffered any form of
trash removal on the
property.
Comment #4
(9/20/2013)
Refer to Impact Analysis, Assumption for
Development Program, Item #1: The tabulation
of assumptions indicates that table #1 was
based on 1,000 housing units. The narrative
furnished with the revised proffer statement
indicates that the proposed development will
include 1,200 units. Rectify the conflict in the
number of residential units.
The comment regarding the cap on residential units of
1,200 is correct.
N/A
9/26/2014
Comments
Comment #1
(9/26/2014)
Refer to the Executive Summary, Page 1: The
summary indicates that the proffered
improvements shall be provided at the time of
development of that portion of the site
adjacent to the improvement. This statement
is a marked deviation from the approved
rezoning dated September 5, 2005 which
indicates that all improvements will be
constructed prior to granting the first building
The comment correctly confirms that development of the
site can commence after rezoning is approved. It should be
noted, however, that road transportation improvements
are on a construction schedule wherein all road and bridge
improvements are anticipated to be completed and
installed by the summer of 2016. The applicant would very
much like to commence construction and delivery of the
improvements described by the rezoning, but as a practical
matter, it is believed that under the aforementioned
Not all responsive
changes made.
Heritage Commons – Public Works Comments 2014
3
Frederick County
Public Works
Comment #
Agency Comments
*All comments are verbatim from the Public
Work’s comment letter.
Applicant’s Response to Public Works’ Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
permit.
schedule the road and bridge improvements will be
completed before the applicant receives certificate of
occupancy for the properties.
Comment #2
(9/26/2014)
Refer to Paragraph 3, Capital Facility Impacts,
Page 4: A copy of the economic market
analysis was not included with the review
package. Therefore, there is no way to
determine if the actual construction of
commercial development will offset the impact
of the development of 1,200 residential units.
A copy of the most recent report has been provided to the
department. The report confirms that the proposed
commercial development and the multifamily
development, each tested separately, provide for a net
positive fiscal impacts to the County. The revised proffer,
which provides there will be a minimum of 50,000sf of
commercial delivered with every 300 multifamily units
delivers an even greater net positive fiscal impact.
Not all responsive
changes made.
*The proffer does not
guarantee the
construction of any
commercial, only that
building permits will
be obtained.
Comment #3
(9/26/2014)
Refer to Paragraph 4, Multi-Modal
Transportation Improvements, Page 4: The
applicant has made the assumption that
revenue sharing will be available for the
construction of the road network within the
proposed development. This assumption is a
marked deviation from the approved rezoning
which indicates that the applicant will be
responsible for the design and construction of
the entire road network within the proposed
development. It should also be noted that the
approved proffers included the design and
construction of the Tevis Bridge over I-81.
Accepting a proffer statement in the proposed
format could possibly obligate Frederick
County to pay for half the cost of the road
network if the Virginia Department of
Transportation (VDOT) failed to approve the
revenue sharing request.
The discussion related to the construction of
Warrior Drive is ambiguous and again assumes
that revenue sharing will be available. This
The applicant does understand that VDOT has approved a
cost sharing agreement that allows for the construction
system across Heritage Commons and also the adjoining
property (Glaize) and then provides for a connection to
Tevis street by a bridge crossing over i-81. The applicant is
further aware that ther is yet another agreement entered
into between the adjoining property owner (Glaize) and
the City of Winchester, which provides for the connection
of the bridge to Tevis street. The comment appears to
question the interpretation of the cost sharing agreement.
As the applicant understands this said agreement there is
an obligation on both the locality and VDOT by virtue of
the cost sharing agreement to complete construction and
pay for said improvements. Thos agreements available, in
fact, by and between municipality and VDOT and are
commonly used throughout the Commonwealth to
complete and deliver necessary road systems. The
applicant has proffered to pay for Frederick County’s share
of said costs pursuant to the terms of said agreement.
There is a proffer to dedicate Warrior Drive when there is a
need for same and, in particular when the connection of
Warrior Drive is made available through the dedication and
Not all responsive
changes made.
*The applicant has not
entered into any
agreement with
Frederick County or
VDOT to pay the
county match for the
revenue sharing
agreement.
Heritage Commons – Public Works Comments 2014
4
Frederick County
Public Works
Comment #
Agency Comments
*All comments are verbatim from the Public
Work’s comment letter.
Applicant’s Response to Public Works’ Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
paragraph should be revised to indicate that
the applicant will be responsible for providing
the right-of-way, design and construction of
Warrior Drive within the project limits.
construction of Warrior Drive on the adjoining property to
the south. The applicant does not see any benefit in
building a road at great cost and expense that dead-ends
and provides no additional access at this point in time. The
applicant is certainly most interested in providing for
Warrior Drive when the road does connect to the adjoining
property and, therefore the road construction will be put in
use for not only vehicular, but also multi-modal
transportation.
Comment #4
(9/26/2014)
Refer to Paragraph 8, Phasing, Page 6/7: The
discussion of the residential development in
paragraph 8A limits the construction to no
more than four hundred (400) units every two
(2) years. Consequently, Frederick County
could anticipate that the proposed 1,200
residential units could conceivably be built out
in six (6) years.
• The subsequent discussion in paragraph
8B attempts to provide phasing between
residential and commercial development.
However, the construction of residential
units is only limited to obtaining building
permits for the commercial development.
The phases should be specifically tied to
actual completed construction, not just
obtaining building permits. In addition,
this discussion does not account for the
entire 1,200 residential development and
only references a total of 100,000 square
feet of commercial development. We
anticipate that the actual market analysis
As stated previously, it should be noted that the
multifamily residential units are a net positive impact to
Frederick County and, therefore, limiting same does not
seem to be in Frederick County’s interest. With regard to
the comment about the proffer to deliver commercial
along with multifamily residential, the applicant is, in fact,
committing to deliver at least 50,000sf of commercial for
every 300 multifamily units. To the extent that Frederick
County believes this is ambiguous, the Applicant will be
pleased to rephrase the proffer to confirm same.
Not all responsive
changes made.
*The proffer does not
guarantee the
construction of any
commercial, only that
building permits will
be obtained.
Heritage Commons – Public Works Comments 2014
5
Frederick County
Public Works
Comment #
Agency Comments
*All comments are verbatim from the Public
Work’s comment letter.
Applicant’s Response to Public Works’ Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
includes considerably more commercial
development to justify a positive benefit.
However, without a copy of the capital
impact analysis, it is impossible to
determine if the proposed phasing will
provide an actual benefit to Frederick
County. It is recommended that the
phasing be revised so that the board of
supervisors can clearly determine the
potential impact to Frederick County.
Heritage Commons – County Attorney Comments (9/30/14) 2014
1
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Comment #1 Designation of “Applicant” and “Record
Owner”; power of attorney – The materials
indicate that Heritage Commons, LLC is the
Applicant and that R 150 SPE, LLC is the Record
Owner. As the materials, including the Proffer
Statement, already contemplate, signatures on
behalf of R 150 SPE, LLC will be necessary. In
addition, if Heritage Commons, LLC and/or any
other person or entity is going to represent the
interests of R 150 SPE, LLC with respect to the
rezoning application, then R 150 SPE, LLC will
need to execute a power of attorney granting
authority to such person(s). Finally, I note that,
repeatedly throughout the Proffer Statement,
the Proffer Statement indicates that the
“Applicant” commits certain undertakings. In
order to be effective, the commitments in the
Proffer Statement need to be made by the
“Record Owner” or, if so defined, the “Owner”.
We understand that Frederick County does sometime
request that a Power of Attorney be submitted when an
owner/applicant has failed to execute any submittals. You
will note that the proffers have been executed by both the
property owner, R 150 SPE, LLC, as well as the developer,
who is the contract purchaser of the property, Heritage
Commons, LLC, and so that Frederick County is assured
that any obligations that run with the land shall be properly
binding upon the property owner.
Applicant/Owner issue
addressed; no power
of attorney provided
yet
Comment #2 Rezoning Number – The Proffer Statement
currently identifies the rezoning as RZ# 01-05.
This reference should be to the current
rezoning, RZ# 02-14.
In response to your comment, we will make sure that both
rezonings are referenced in the proffer statement so it is
clear that the current rezoning RZ #02-14 is modifying RZ
#01-05.
Proffer now refers to
current rezoning
number.
Comment #3 Executive Summary – 1st sentence – Proffer
statements themselves customarily include only
specific future commitments with respect to the
subject property and, as such, do not
customarily and in fact have no reason to recite
the zoning history of the subject property.
Accordingly, the first sentence is completely
unnecessary surplusage and should be deleted.
In response to your comment, we believe it is important
that the reader of the new proffer statement RZ #02-14 has
a clear understanding of the history of the zoning of this
property and the effect of the approval of the 2014
rezoning which will replace the 2005 rezoning in its
entirety.
Not all responsive
changes made.
Heritage Commons – County Attorney Comments (9/30/14) 2014
2
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Comment #4 Executive Summary – 1st paragraph, last
sentence – The timing commitment in this
sentence, that proffered improvements “shall
be provided at the time of development of that
portion of the site adjacent to the
improvement”, renders the Proffer Statement
inappropriately vague. Does “time of
development” mean prior to site plan, prior to
building permit, prior to occupancy permit, or
something else? Not only does this vagueness
substantially limit the efficacy of staff review of
the Proffer Statement, but it would also present
a myriad of potentially significant interpretation
problems as the Property develops.
In response to your comment, to the extent required the
Applicant will meet with Planning Staff to come up with
such language as may be more appropriate to effect the
clear intent of this paragraph.
Not all responsive
changes made
Comment #5 Proffer 1 – Design Modifications – County Code
§ 165-501.06(O) provides, in pertinent part, “An
applicant may request as part of an application
for rezoning to the R4 District that a
modification to specific requirements of the
Subdivision Ordinance, this chapter or other
requirements of the Frederick County Code
applicable to physical development be granted.”
Therefore, this proffer could simply state,
“Pursuant to County Code § 165-501.06(O), the
design modifications set forth in Exhibit B shall
apply to the Property.” The lengthy language of
this proffer, in particular that of the paragraph
following A and B, is unnecessary and unclear.
If there is an actual need for the concluding
paragraph, then it needs to be simplified down
to perhaps a single sentence and it should
under no circumstance purport to state any
Likewise, in response to your comment, to the extent
required the Applicant will meet with Planning Staff to
confirm the language in the proffer is to their satisfaction
as it relates to and confirms design modifications for the
property. In response to Paragraph #5’s bullet-point
comments, we provide the following:
*With regard to the comment to Modification #1, the
Applicant would submit that the GDP is of sufficient
specificity to allow for development to proceed directly to
site plan and not require a master plan. The Applicant is
aware that Frederick County has recently modified its
Master Development Plan ordinance to allow for a true
administrative review of an applicant’s submission. In this
case the Applicant would expect that after rezoning the
next administrative step would be for the submittal of a
site plan.
*With regard to comment to Modification #2, we will
revise the documents to confirm that M1 uses can be
Not all responsive
changes made
*Staff Note: the MDP
requirements have
not been changed to
allow administrative
processing. If
approved, Heritage
Commons would still
require a MDP that
would be reviewed as
an informational item
by the Planning
commission and the
Board of Supervisors
prior to approval.
Heritage Commons – County Attorney Comments (9/30/14) 2014
3
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
obligation on behalf of the County. With
respect to the particular design modifications
proposed, the following comments are in order:
• Modification #1 – § 165-501.02 –
Rezoning procedure – While the Proffer
Statement proffers reasons for waiving
the requirement of a master
development plan to be submitted with
the Proffer Statement, the proposed
modification lacks specificity with
respect to precisely when any master
development plan(s) would be
provided. It might be appropriate to
state that a master development plan
would be provided for a particular land
bay prior to issuance of any permits for
work on that land bay.
• Modification #2 – § 165-501.03 –
Permitted Uses – The proposed
alternative standard states that M1 uses
would be permitted, but this is
inconsistent with Modification #5,
which states that “industrial uses should
… not [be] allowed” in the Heritage
Commons Land Bays.
• Modification #5 – § 165-501.06(D) –
Commercial and industrial areas – The
proposed alternative standard states
that “industrial uses should … not [be]
permitted as is consistent with the Zoning Ordinance.
*With regard to the comment to Modification #5, again,
we will make revisions to the text to allow for industrial.
*With regard to the comment to Modification #9, as stated
in response to comments to other agencies, it is clear that
the Applicant’s intent is to confirm that it shall deliver a
minimum of 50,000 square feet of commercial space with
the delivery of the 300th multi-family residential unit and a
minimum total of 100,000 square feet of commercial with
the delivery of the 600th multi-family residential unit. If an
adjustment to the wording is required to confirm same
then the Applicant has no objection to said alternative
wording. The Applicant would agree Frederick County
Code requires that a reasonable balance shall be
maintained between residential and non-residential units,
and this reasonable balance is exactly what is being
proposed in this rezoning.
*With regard to the comment to Modification #10, we
believe the comment is a correct interpretation of the
language stated in said Modification. With regard to
architectural screening features there should not be an
objection to allowing those to be installed without
limitation because they are, after all, designed to screen
and, therefore, protect the viewshed. Antenna structures,
and in particular cell towers, are governed by other
ordinances, and we would expect that if such an antenna
were proposed then said ordinances would be applied.
*With regard to the comment Modification #11, the design
of a mixed-used building will be subject to the design
standards for the entire Heritage Commons community. It
is correct that said design standards have yet to be
implemented but, again, as required by the proofer, they
will implemented for the entire Heritage Commons
Heritage Commons – County Attorney Comments (9/30/14) 2014
4
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
allowed”, but does not indicate exactly
which uses/zoning district uses would
not be allowed, namely whether this is
just uses in the M1 District or also those
in the B3 District or some subset(s) of
one or both of those districts. Also, the
proffer would do well to replace the
word “should” with “shall”.
• Modification #9 – § 165-501.06(M) –
Phasing – Please see the comment in
number 15 below regarding phasing for
this development. I also note that §
165-501.06(M)(3) requires that a
“reasonable balance shall be
maintained between residential and
nonresidential uses”.
• Modification #10 – § 165.201.03(B)(6) –
Height Limitations – Staff should be
aware that this proposed modification
has been revised now to exclude
entirely from the height limitations
“architectural screening features” and
“antenna structures.” Such features
and structures would apparently be
subject to no limit under the proposed
modification.
• Modification #11 – § 165-402.09(J)(D1)
– Multifamily residential buildings – This
property prior to commencement of development.
Heritage Commons – County Attorney Comments (9/30/14) 2014
5
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
modification, and the Proffer Statement in
other places, refers to residential and
commercial uses being contained in the
same buildings in some instances, but the
Proffer Statement does not include any
design standards for carrying out such a
concept.
Comment #6 Proffer 2(A)(1) – Uses, Density and Mix – This
proffer identifies certain housing types –
single-family attached, multi-family, gated
single-family attached, and gated multi-family
– that the Property “may include”. Some of
the housing type terms do not appear in the
County Code. To prevent any ambiguities, a
best practice would be for this proffer to use
only those terms contained in County Code §
165-402.09. Also, by use of the term “may
include”, this proffer is ambiguous as to
whether it prohibits other housing types that
the County Code otherwise allows in RP zoning
(which the R4 zoning follows for residential
uses). If other housing types are to be
prohibited, then this proffer should so state. If
other housing types are not to be prohibited,
then there is no purpose for the inclusion of
Proffer 2(A)(1), as it has no effect.
In response to you comment, the language that is used to
describe the different unit types is language that is typically
used in the development community to describe specific
types of properties. The Applicant will be pleased to work
with Frederick County Planning Staff to arrive at other
language if it is preferred and which serves the same
purpose to describe said units. Further, the County
Attorney is correct that there is not an intent in the proffer
to restrict other units that may exist now or which may be
developed or created in the future. The purpose of this
proffer is to build flexibility into the design and not to
unnecessarily restrict the same.
Not all responsive
changes made
Comment #7 Proffer 2 (C) –Uses, Density and Mix-Other
than stating the unit cap of 1,200 residential
units within Land Bays 3, 5, and 7 and stating
that no townhouses will be built in any Land
Bay other than Land Bay 7, the proffer does
not state any obligation and, accordingly, the
The purpose of proffer 2 (C) is to confirm a residential unit
cap and also to restrict the location of townhouses, if any.
The Applicant submits that the remainder of said
paragraph is self-explanatory and appropriate.
Not all responsive
changes made
Heritage Commons – County Attorney Comments (9/30/14) 2014
6
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
remainder of the language in the proffer
should be deleted.
Comment #8 Proffer 3 – Capital Facility Impacts – The
purpose of a proffer statement is to state the
obligations to be imposed upon the property
being rezoned. Proffer 3 states no obligations.
If the desire of the Owner and/or the Applicant
is to include a paragraph regarding capital
facility impacts, the paragraph, should simply
state, “Owner makes no monetary proffers to
address any County capital facilities impacts.”
Also, please see the comment in number 15
below regarding phasing for this development.
Finally, the undersigned previously provided
certain comments on the impact analysis
statement dated September 5, 2013,
accompanying the proposed Proffer Statement
of the same date; the County has since
received an impact analysis statement dated
October 2013 and this letter does not attempt
to respond to that analysis.
This paragraph appears to raise questions about capital
facility impacts and also the fact that the County has
received, but apparently not yet reviewed, the most recent
impact analysis statement. Both the impact analysis
statement(s) submitted by the Applicant confirm there is no
net negative fiscal impact that is created as a result of the
development of the Heritage Commons community as
proffered. As a result, the clear and only interpretation of
said analysis is that there is no negative capital facility
impact and, therefore, there is no need and/or requirement
for the Applicant to make a payment toward capital facility
impacts.
Not all responsive
changes made
Comment #9 Proffer 4 – Transportation – Paragraph 1 – The
second sentence does not state an obligation
of the Owner and therefore is inappropriate
for inclusion in the proffer and should be
deleted. The third sentence purports to
obligate the County to enter into agreements
with VDOT and the Applicant (should be
Owner). The Board of Supervisors does not
have the authority to commit to a future
affirmative act in the context of a proffer
statement and, therefore, the sentence should
Paragraph #9 requests that the “Owner agrees to
participate in one or more VDOT revenue sharing
agreements for the funding of the design and the funding of
the installation of the road network, which shall be in
substantial conformance with the designs set forth in
Exhibit A.” The Applicant understands that the VDOT
revenue sharing agreements can only be entered into by
and between VDOT and a municipality (Frederick County).
What is being proffered in this rezoning application is that
the Applicant shall enter into a separate agreement with
Frederick County to pay Frederick County’s share of the
Not all responsive
changes made
Heritage Commons – County Attorney Comments (9/30/14) 2014
7
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
be deleted. With the deletion of the third
sentence, the fourth sentence might best read,
“Owner agrees to participate in one or more
VDOT revenue sharing agreements for the
funding of the design and the funding of the
installation of the road network, which shall be
in substantial conformance with the designs
set forth in Exhibit A.” The sentence should
also indicate the level of Owner’s
“participation”. Finally, the last sentence is not
sufficiently definite at this point.
VDOT revenue sharing agreement. The Applicant
understands that it cannot be made a party of the VDOT
agreement; therefore, there should not be an attempt to
direct same.
Comment #10 Proffer 4 – Transportation – Paragraph 2
(Warrior Drive) – The proffer is not sufficiently
definite. With respect to right-of-way
dedication, the proffer would best commit to a
general location for right-of-way and to
dedicate, at a specific time, right-of-way in
substantial conformance with such location.
10 and 11. In response to your comments, Warrior Drive has
not yet been defined and, therefore, it cannot be dedicated.
Accordingly, the Applicant has proffered to dedicate the
Warrior Drive right-of-way at such time as its location has
been tied down to some degree of certainty. Frederick
County Deputy-Director of Transportation has suggested
there may be a future VDOT revenue sharing agreement
that relates to the construction of Warrior Drive and it
will perhaps be at that point in time and at the direction of
Frederick County and its engineer that the Warrior Drive
location will be defined to a certain location and, at that
point, it can be dedicated.
For clarity, it may be
best to separate
discussion of the 400
foot segment and the
discussion of the
remaining portion of
Warrior Drive into two
separate paragraphs.”
Comment #11 Proffer 4 – Transportation – Paragraph 3 – The
proffer does not appear to state any
obligation.
See above Not all responsive
changes made
Comment #12 Proffer 6 – Recreational Amenities – The first
two sentences do not state any obligations
beyond any existing ordinance obligations and,
as such, are not appropriate for inclusion in a
proffer statement. Also, with respect to the
provision of the last sentence of the first
paragraph, it likewise does not state an
The comment to Paragraph #12 does not appear to have an
objection to what is being proposed by way of trail systems.
The Applicant believes it is important that the reference to
the recreational amenities be included so Frederick County
fully understands and appreciates what is being proposed
by way of recreational amenities as part of the proposed
rezoning.
Addressed, except the
words “Buffalo Lick”
or missing in one
place
Heritage Commons – County Attorney Comments (9/30/14) 2014
8
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
obligation, with respect to public access, as it
states only that “it is intended that the …
trail(s) … will be available for public access.”
Comment #13 Proffer 7 – Comprehensive Plan Conformity –
This proffer is inappropriate, as it does not
provide for what would be considered
adequate notice for purposes of mandatory
reviews under Va. Code § 15.2-2232.
Specifically, at present, the Proffer Statement
itself identifies only the trail as a public facility.
Section 15.2-2232 requires: “unless a feature
is already shown on the adopted master plan
or part thereof or is deemed so under
subsection D, no street or connection to an
existing street, park or other public area, public
building or public structure, … whether publicly
or privately owned, shall be constructed,
established or authorized, unless and until the
general location or approximate location,
character, and extent thereof has been
submitted to and approved by the commission
as being substantially in accord with the
adopted comprehensive plan or part thereof.”
The effect of the proffer, if approved, would
prevent any and all review under Va. Code §
15.2-2232 of any and all additional public
facilities, including in particular as to the
“character” and “extent” of such facilities, and
again, other than the trail, the Proffer
Statement currently provides no information
Paragraph #13 appears to have a question about trails and
whether or not they are defined to a sufficient specificity. It
is very difficult, if not impossible, for the Applicant to
confirm the locations of trails that are believed to be a part
of the road and bridge system being designed under the
VDOT revenue sharing agreement. The Applicant would
incorporate its replies to comments of a similar nature
received from other Frederick County agencies and submit
that once Frederick County and its engineer have fully
designed the transportation network that it will be clear at
that point in time the exact locations of trails, sidewalks,
multimodal systems, etc.
Not all responsive
changes made
Heritage Commons – County Attorney Comments (9/30/14) 2014
9
Frederick County
Attorney
Comment#
Agency Comments
*All comments are verbatim from the County
Attorney’s comment letter.
Applicant’s Response to County Attorney’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
regarding the “character” and “extent” of any
such future facilities.1
Comment #14
Proffer 8(A) – Phasing (biannual development
limits) – The statement that “Applicant is
prepared to commit that no more than four
hundred (400) residential units will be
developed and built within the first two (2)
years of development” does not state an
obligation. It should simply state that “no
more than 400 residential units will be built”
within the stated period.
In response to your comment, the Applicant will be pleased
to work with Frederick County Planning Staff in the event
that it believes the phrasing of a particular proffer is
unclear. We would note, however, that given the most
recent revision of the proffers that perhaps proffer 8(A)
ought to be reviewed and possibly be considered as
unnecessary given the fact there is a current proffer to
provide for installation of 50,000 square feet of commercial
for every 300 multi-family residential units. It would seem
that limitation of construction of residential would,
therefore, not be especially desirable because it would
unnecessarily restrict development of commercial.
Addressed, except a
further change to the
language is needed so
that it reads correctly
Comment #15 Proffer 8(B) – Phasing (commercial
development triggers) – The proffer, by
referring to the issuance of building permits for
commercial development, does not state a
meaningful obligation for purposes of phasing.
Mere issuance of a building permit, as the
proffer currently commits, in no way obligates
the construction of a structure, for purposes of
rendering the phasing meaningful.
Furthermore, not even the building permit
trigger would affect the maximum 184
townhouses permitted on the Property. The
proffer would best refer to issuance of an
occupancy permit as the relevant event.
As stated above, in response to the comment to
Modification #9, the commitment to deliver a minimum of
50,000 square feet of commercial development for every
300 multifamily residential units is clear. If there is a desire
to re-phrase this language to Frederick County Planning
Staff’s and the Applicant’s satisfaction, the Applicant is
pleased to work with Frederick County Planning Staff to
develop said language.
Not all responsive
changes made
Heritage Commons – Planning Department Comments – Perkins (9/23/14) 2014
1
Frederick County
Planning
Department
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Comment #1 Proffer 2 Uses, Density and Mix. As stated in
staff’s September 12, 2013 comment letter,
the proffer should show a maximum and
minimum percentage of commercial and
residential acreage being proposed with this
rezoning. This area is proposed to consist of
business/commercial and residential land uses
and therefore, B3 (Industrial Transition) uses
should be prohibited on the site.
The applicant has intentionally incorporated by reference a
chart reflecting the minimum and maximum percentage of
commercial and residential development proposed within
each landbay. The mix for all of those landbays have
ranges. We will not know the precise mix until actual
build-out. Certainly one can conduct a calculation for
minimums and maximums of residential and commercial
for the entire Heritage Commons’ site, and by our
calculations the range of commercial development is 35%-
76% and the range of residential development is 16%-56%.
The Applicant prefers, however, and thinks it makes more
sense if we tie it to the specific landbays as is contained in
the incorporated table. The last comment from staff was
that B3 uses should be prohibited. To the contrary and at
this point the Applicant wants to preserve with as much
option as possible the ability to deliver commercial uses as
a mix and to blend in with the residential. It should be
noted there are design standards that are being proffered
as part of this rezoning so in the event any commercial,
including, but not limited to B3 is installed, it will need to
fully comply with design standards so the use will be
harmonious with surrounding development.
Yes
The proffered
breakdown table
shows minimum and
maximum
residential/commercial
acreages.
No
The proffered table
provides for B3 and
M1 land uses. The
uses shown within
landbays 3 and 7 are
not supported by the
Comprehensive Plan.
Comment #2 Impact on Community Facilities. As previously
stated in staff’s September 12, 2013 comment
letter, as part of your rezoning package a
market and fiscal impact analysis was
submitted that showed a positive fiscal gain;
however, there is no proffered phasing or
requirement that the commercial portion be
With regard to your comments about impacts on
community facilities, Staff’s initial statement is correct that
the Market and Fiscal Impact Analysis shows a positive
fiscal gain to Frederick County. As a result, there is no
negative impact on community facilities. Staff’s comment
seems to be more focused on the mix of the residential
versus commercial. All would be well advised to
Not all responsive
changes made.
*This project is not
proffered to be market
rate.
Heritage Commons – Planning Department Comments – Perkins (9/23/14) 2014
2
Frederick County
Planning
Department
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
constructed before the residential. The
development impact model projects a negative
impact of $13,062 per single family attached
unit and $11,339 per multifamily unit on
County capital facilities. Therefore, based on
the unit cap of proffer 2C, the potential impact
the residential units will have on County
facilities is $13.9 million. The development
should not utilize the future potential tax
contributions of the commercial landbays to
offset the residential landbays without phasing
the commercial to be built in conjunction with
the residential.
remember that the multi-family residential according to
the Stu Patz Impact Analysis results in a net positive fiscal
impact. As a result, even if for discussion’s sake only the
multi-family units were delivered there would still be a net
positive fiscal impact to the County and, therefore, to
County facilities. As you have noted, we have revised the
proffer to provide that there will be a minimum of 50,000
square feet of commercial space developed for every 300
multi-family residential units. This, of course, enhances
and adds to the positive fiscal impact.
*The applicant’s
phasing allows 599
multifamily and 184
townhouses prior to
any commercial being
constructed.
Comment #3 Updated Fiscal Impact Analysis. Staff was
advised that the Fiscal Impact Analysis was
updated to address inaccuracies in the input
data. To date staff has not received a copy of
this updated document.
In response to this comment, I enclose a copy of the
updated Stu Patz report.
N/A
Comment #4 Monetary Proffers Omitted from New
Rezoning. As stated in staff’s September 12,
2013 comment letter, it should be clarified
why the new rezoning application has
removed the following previously proffered
monetary proffers:
$10,000 to Fire and Rescue
$3,000 per unit for Schools
$2,500 HOA start up proffer
• 1 million for the general transportation
fund ($3,500 per residential unit)
I assume the reference to the removal of proffers is
referring to monetary proffers that were offered with the
2005 rezoning. Please understand that this Applicant is
not in any way related to the former applicant, and the
former Applicant no longer has any interest in this
property. Further still, the prior rezoning has numerous
aspects associated with it, including, but not limited to, the
fact that it proffers a road network and systems that are no
longer acceptable to VDOT and also provided for a funding
mechanism through a Community Development Authority,
which has since been amended as a result of a failure of
the original financing scheme. Staff is correct that there
Not all responsive
changes made.
*This project is not
proffered to be market
rate which is the
catalyst in the
economic report
making these units a
“fiscal positive
impact’”.
Heritage Commons – Planning Department Comments – Perkins (9/23/14) 2014
3
Frederick County
Planning
Department
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
are no monetary proffer payments called for in the
rezoning submitted for the Heritage Commons community.
As the applicant understands it, the suggested monetary
proffers were created to address negative impacts to the
County that would occur as a result of a proposed
development. As stated above, the proposed Heritage
Commons development has a net positive fiscal impact to
the County, which means that the proposed development
should not require a supplemental proffer payment. The
Applicant would agree that under the prior rezoning of
2005 the development proposed therein would have had
negative fiscal impacts and, therefore, would call for
monetary payments. As stated above, however, the
community proposed with this rezoning bears little, if any,
resemblance to the rezoning that was submitted and
approved in 2005.
Comment #5 Proffer 6 – Recreational Amenities. As
previously stated in staff’s September 12, 2013
comment letter, this proffer speaks in general
terms of what could be constructed as
recreational amenities for the project, but
does not commit to construct anything. Unless
the owner is proffering a specific amenity, the
proffer should be eliminated and the exact
recreational unit type would be specified at
the MDP stage. The proffer also states that
walking trails and sidewalks will be provided
within the community; the trail locations
should be located on the GDP. Please note
that sidewalks along roadways are required by
County Code.
The comment to the proffer suggests that there is no
commitment to constructing amenities. In point of fact,
the trails are a specific commitment of the Applicant, one
running along the side of the stream channel and also
providing the possibility at the Applicant’s discretion of
installing a second one. Staff has pointed out that
sidewalks along the road systems are required by County
Code. It is believed and, therefore, anticipated that there
will be in addition to sidewalks a multi-modal trail provided
as a result of the development of the road network, which
is currently being designed by Frederick County’s Engineer
and its engineering firm Pennoni Associates. The Applicant
is not in a position to commit to the specifics of said road
network and other related items, such as multi-modal
trails, walkways, bike paths, etc. because the Applicant
Not all responsive
changes made.
Heritage Commons – Planning Department Comments – Perkins (9/23/14) 2014
4
Frederick County
Planning
Department
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
does not control said design. In addition to the above, the
market rate multi-family units that have been approved all
included separate recreation amenities for each multi-
family project. The definition of market rate multi-family
units includes significant investment in amenities for the
occupants of said market rate communities such as work-
out facilities, pools and meeting and social areas within a
clubhouse type structure. Those facilities will be present
and will be more than adequate to address the
recreational needs of their residents.
Comment #6 Proffer 6 – Phasing. The revised phasing
proffer states that the applicant would need to
apply for and receive a building permit for
50,000sf of commercial in order to construct
the first 300 multifamily units. The proffer also
states that this 50,000sf of commercial area
would need to be constructed before the
applicant could construct the 600th or greater
multifamily units. This proffer does not
guarantee the construction of any commercial
square footage to offset impacts from the first
300 residential units; it simply guarantees that
a building permit for a commercial use would
be obtained. A more appropriate proffer
should address acquisition of a Certificate of
Occupancy for the commercial use. As written,
the proffer would allow the construction of
599 multifamily units and 184 townhouses
prior to any commercial development being
constructed. This is not consistent with the
Patz suggested phased approach to maintain
The Applicant is please that Staff has review the proffer,
which commits to constructing 50,000 square feet of
commercial for every 300 multi-family residential units. To
the extent there is any confusion to this commitment, the
Applicant will be please to rephrase, but it is clear that the
intent of the proffer is to deliver a minimum of 50,000
square feet of commercial development for every 300
multi-family residential units. To restate the commitment,
the Applicant is further willing to commit that a second
block of 300 multi-family residential units will only be
constructed after 50,000 square feet of commercial has
been constructed. Further in this paragraph there is a
comment drawing form the Stu Patz Impact Analysis
suggesting that as a result of Staff’s review of said analysis
that there needs to be a proffered guaranteed offset to
address impacts from residential uses. In point of fact, the
multi-family residential uses per the Stu Patz report
provide a positive economic impact to Frederick County
and, therefore, the Applicant does not understand the
suggestion that there needs to be a guarantee to “offset”
said positive impact.
Not all responsive
changes made.
*This project is not
proffered to be market
rate.
*The October 2014
proffer provides for
the construction and
completion of
50,000sf of
commercial with the
first 599 multifamily
units. The proffer also
requires a building
permit be issued for an
additional 50,000sf of
commercial with the
600th multifamily
permit, but there is no
Heritage Commons – Planning Department Comments – Perkins (9/23/14) 2014
5
Frederick County
Planning
Department
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
economic balance, nor does this phasing
proffer guarantee to offset impacts from
residential uses. As written, the phasing
proffer provides little if any benefit to the
County and development.
occupancy permit
trigger. This phasing is
contrary to what is
shown in the Patz
report.
Comment #7 Mixed Use Development. The proposed R4
zoning being sought with this rezoning
application would enable a mixed use
development; however, there are no
assurances within the proffer statement that a
core/town center area will be provided. As
proffered, the development would be a
traditional residential and commercial project,
with the uses being clearly separate from one
another.
Staff has correctly pointed out that the mix of
development that is sought by the Applicant at the
Heritage Commons site has not specifics to it and that
there is no guarantee to a mix that will result in a
“core/town center area.” The commitment, however, is
that there will be a guaranteed mix of residential and
commercial within the land bays and as proffered.
Whether they will be delivered in the form of a “core/town
center area” is not part of this proffer. Indeed, the
Applicant is leery of making such a commitment because
those are not defined terms and may, in fact, be subject to
interpretation. The Applicant believes and submits that it
is far better, therefore, to proffer that within the Heritage
Commons site there will be commercial and residential in
close proximity which will allow for an opportunity to live,
work and play in the same land bay.
Not all responsive
changes made.
Heritage Commons – Planning Department Comments – Bishop (9/30/14) 2014
1
Frederick County
Transportation
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
Comment # 1 The version I received did not initially have a
GDP which was referenced in the proffers.
However, a GDP (unchanged from the original)
was received in our office on September 23,
2014, and I will consider that as the GDP being
referenced. If for some reason this is incorrect,
I can modify my comments as needed.
You are correct, the Generalized Development Plan
(“GDP”) has not been revised with the September 18, 2014
proffer revisions.
N/A
Comment #2 Regarding the GDP, as I noted at the work
session on September 3, 2014, it denotes
several entrances that have not been modeled
or evaluated and should be removed from this
graphic. Proposed entrances should stand on
their own merits relative to the prevailing
VDOT standards for design and safety as well
as local planning and should not be proffered
unless what is being proffered is more
restrictive than the current standard. I do not
have concern with the updated general
alignment that is shown.
With regard to your comment about the entrances
reflected on the GDP, all need to be reminded that the
road and bridge network running across not only the
Heritage Commons property, but also across the adjoining
(Glaize) property is being conducted as a joint project
between VDOT and Frederick County with the Frederick
County Engineer having the primary role of coordinating
the work on the project, including, but not limited to, the
design and engineering. The Applicant has intentionally
engaged Pennoni & Associates to prepare exhibit,s such as
the GDP, because that engineering firm is the firm that has
been selected by Frederick County and approved by VDOT
to design and engineer the above-referenced road
network. Any entrances reflected in the GDP are,
therefore, shared with the design team working with
Frederick County and VDOT. To the extent any further
consideration of those entrances needs to occur, the
Applicant believes that is being conducted by the Frederick
County/VDOT design team as the work progresses.
Certainly, the Applicant will defer to that process with
regard to the location of entrances provided that there is
reasonable access to the Applicant’s property. Likewise,
Not all responsive
changes made.
Frederick County and
VDOT is not in control
of the applicant’s GDP
nor did any engineer
under contract by the
County design the
applicant’s GDP.
The applicant should
proffer that all
entrances need to be
approved by VDOT
and therefore are not
guaranteed because
they are shown on the
GDP.
Heritage Commons – Planning Department Comments – Bishop (9/30/14) 2014
2
Frederick County
Transportation
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
the suggestion that all entrances shown on the GDP should
be removed from the graphic is not appropriate. Clearly
the purpose of this road network is not only to allow
through traffic to and from the City of Winchester and Rt.
522, but also to access the Heritage Commons property.
Comment #3 While residential units are capped, there is no
such limitation of office and commercial. This
leads me to be concerned that this application
may not be in compliance with Chapter 527. I
have requested a determination on this from
VDOT. To avoid this issue, I would recommend
proffering a development cap that would keep
trip generation in line with what was
considered at the previous rezoning. The
current narrative in the third paragraph of
section 4 does not accomplish this. Right now
that paragraph only seems to state what the
author’s interpretation of what studies have
said, and what the applicant’s engineer has
said, and doesn’t really appear to proffer
anything. As such, it likely should not be in the
proffer statement, but would more
appropriately be included in another portion of
the application.
The Applicant understands that Fredrick County Deputy
Director of Transportation is requesting a determination
from VDOT as to what, if anything, ought to be required by
way of further traffic study. As soon as that information
has been provided from VDOT, we assume that will be
forward to the Applicant. The Applicant does appreciate
the suggestion that there be a development cap in order to
“. . . keep trip generation in line with what was considered
at the previous rezoning.” The Applicant submits,
however, that the development types and mix as
submitted and included in the rezoning application should
be all that is required. The Applicant has intentionally
restricted residential unit development to no greater than
1,200 but not capped the commercial, which would include
uses such as office and retail because those uses are very
positive from a fiscal and tax revenue perspective to
Frederick County. The Applicant also submits that the
significant road network being installed across its property
and across the adjoin property is more than adequate to
accommodate the potential maximum build out, which is
described in the rezoning application. Indeed, the
Applicant is aware that VDOT has conducted several traffic
studies of its own that has resulted in a new road
alignment, which is reflected in the GDP to include a dual
lane traffic circle and, further still, that this road network
has been designed to accommodate a detour of trips which
Not all responsive
changes made.
The applicant has
proffered a cap of 1.2
million square feet of
commercial/industrial
area which is much
higher than what was
proposed in the TIA
for Russell 150.
The basic traffic
studies conducted by
VDOT to not model
the applicant’s
project.
It has been
determined that
without limiting the
trips to the previously
reviewed 2005 TIA for
Russell 150 that this
project will trigger a
TIA under Chapter
Heritage Commons – Planning Department Comments – Bishop (9/30/14) 2014
3
Frederick County
Transportation
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
is to occur when the Rt. 50 bridge that crosses I-81 is
removed and reconstructed. To this end, the Applicant is
curious as to what benefit a traffic study would provide
because if this road network has already been deemed to
be satisfactory to VDOT, what purpose would another
traffic study serve? Certainly it would not serve to allow
for the installation of a lesser road network given the fact
that Frederick County and VDOT have decided on the
network as depicted on the GDP. The Applicant commits
to continuing to work with the Frederick County Deputy
Director of Transportation on these issues, but we would
expect that after there has been a thorough review of the
traffic studies that were conducted with the original
rezoning and the subsequent traffic studies commissioned
by VDOT that there has been more than adequate study of
this road network and that it more than adequately
addresses impact from not only this proposed
development, but also the impacts that would come from
the region as a whole.
527.
Comment #4 As noted on September 3, 2014 the proffer
continues to lack the detail, assurances, and
performance triggers that were included in the
existing proffer. The existing proffer is very
specific in regards to Tevis St., Airport Rd.,
Warrior Drive, and the bridge over I-81. This
proposed proffer relies instead on the GDP,
which does not included an appropriate level
of detail and does not have any performance
triggers. While it is clear that the applicant
intends to enter into agreement with the
References to the existing rezoning and proffer approved in
2005 makes the evaluation of this proposed rezoning
unnecessarily confusing and challenging. As stated in
response to previous comments, the existing rezoning and
proffer is for a much different project with different
aspects, all of which for a multitude of reasons are not
buildable. As it relates to transportation, the existing
proffer describes a road network that VDOT has
determined is unacceptable. Therefore, to make
references to an existing proffer that calls for specific road
installations as set forth in the 2005 proffers is not
Not all responsive
changes made.
*The applicant has not
entered into any
agreement with
Frederick County or
VDOT to pay the
county match for the
revenue sharing
agreement.
Heritage Commons – Planning Department Comments – Bishop (9/30/14) 2014
4
Frederick County
Transportation
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
County for revenue sharing, there is no
protection should the applicant and County be
unable to come to terms. I would note that
the existing proffer package guarantees the
roads, details the roadways and performance
triggers, and notes that the roads will be built
even if the CDA is unable to do so.
especially helpful because VDOT does not approve of said
road alignments and configurations. Instead, the Applicant
has proffered to pay Frederick County share of the road
project described as part of the cost sharing agreement
with VDOT. It should be pointed out that as the final
design work is completed there will be more definition
given to all parties and the Applicant as to what the exact
final costs will be and the mechanism for the payment of
same. The Applicant does agree that the exact terms of
said agreement will be subject of a separate agreement
between the Applicant and Frederick County.
*Cross sections have
not been proffered by
the applicant.
Comment #5 This proposed proffer has no mention of the
currently proffered bridge over I-81.
The Applicant is not sure what is meant by this comment
about the bridge over I-81. As the Applicant understands
the cost sharing project for the road improvements across
the Heritage Commons property and the neighboring
(Glaize) property, it includes a bridge which crosses I-81
and connects to Tevis Street in the City where another
project has been committed to and which would attach
Tevis Street to the bridge.
Not all responsive
changes made.
Comment #6 The proffered $1,000,000 in funds toward the
transportation system has been removed as
previously noted on September 3, 2014.
This is again a reference to a prior proffer. All need to be
reminded that there are no CDA funds to pay for any
transportation improvements on the Heritage Commons
property. The Applicant has committed to paying Frederick
County’s share of the cost sharing agreement with VDOT to
construct the road network, which is depicted on the GDP.
The final cost of said project is not yet known, but it is
anticipated to be in excess of $10,000,000. The Applicant’s
commitment to pay Frederick County’s share of same is for
a significant amount of money. To commit further still to
pay additional sums, let alone an additional $1,000,000, is
not possible. Further still, given the fact that a significant
Not all responsive
changes made.
Heritage Commons – Planning Department Comments – Bishop (9/30/14) 2014
5
Frederick County
Transportation
Comment #
Agency Comments
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Staff’s Comment
*All comments are verbatim from the applicant’s response
letter.
Agency Comments
Addressed in Proffer?
transportation network is being installed on the Applicant’s
property, which is being designed to address not only the
impacts from the Heritage Commons property, but also
from the region as a whole, the Applicant does not
understand why it would be expected to pay additional
sums to address “impacts.”
Comment #7 Paragraph 1 of section 4 continues to place the
County into the position of agreeing that what
is being proposed is substantially similar to
what is already proffered. As noted on
September 3, 2014, this is inappropriate.
Please see prior comments to references approved in 2005. Not all responsive
changes made.
Heritage Commons – Parks & Recreation Comments (9/24/14) 2014
1
Frederick County
Parks & Recreation
Comment #:
Agency Comment
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Parks & Recreation Comment Agency Comments
Addressed in Proffer?
Comment #1 We are not satisfied that monetary
contributions are adequately addressed.
Heritage Commons has a net positive impact to Frederick
County. There will be excess revenue that Frederick
County can use as it sees fit.
Not all responsive
changes made.
Comment #2 Proffer should clearly state that Airport Rd,
Warrior Dr, and Tevis St, will have 10’ bicycle/
pedestrian accommodation, (as is clearly
identified in the Russell 150 proffer). Current
language is vague in stating “road” when
presumably referring to all roads, and stating a
“ten foot (10’) or such other appropriate width”
rather than committing to a 10’ width (as is
recommended).
Applicant is not in control of the design of the
transportation networks across its property to include the
connection to Tevis Street, the adjoining Glaize property
and the commencement of Warrior Drive. Applicant
understands that the design includes 10’ paths to
accommodate Parks & Recreation’s comments.
Not all responsive
changes made.
*Cross sections have
been proffered for
Tevis Street which
show a 10’ multiuse
path.
*Cross section have
not been provided for
Airport Road or
Warrior Drive.
Comment #3 Beyond reference to ordinance requirements,
The Recreational Amenities section appears to
proffer:
To “construct pedestrian trails and/or sidewalk
systems, which connect each recreation area to
the residential land uses within the Land Bay.”
Comment: Connecting recreation areas to
users is appropriate.
. “to install a ten-foot (10’) wide asphalt or
concrete trail along the Buffalo Lick Run Stream
Valley”
Comment: Some indication of length should
be provided for this proffer.
No Comment
Applicant will measure the length of the proposed trail
along Buffalo Lick Run.
Not all responsive
changes made.
Comment #4 Bike/Pedestrian accommodation on the I-81 Applicant believes that the pedestrian/bicyclist * Cross sections have
Heritage Commons – Parks & Recreation Comments (9/24/14) 2014
2
Frederick County
Parks & Recreation
Comment #:
Agency Comment
*All comments are verbatim from Staff’s
comment letter.
Applicant’s Response to Parks & Recreation Comment Agency Comments
Addressed in Proffer?
flyover bridge should be provided. This is
greatly needed.
accommodations are being made part of the design of the
transportation network.
been proffered for the
bridge which show 5’
sidewalks on each
side.
Comment #5 DESIGN MODIFICATION DOCUMENT –
Modification #6
Parks and Recreation recommends denial of this
modification. This request significantly
diminishes the open space requirement and
leaves open the potential to claim other
environmentally sensitive areas (flood plain,
wetlands, and steep slopes) as open space.
Purpose is to allow for the construction of a more compact
mix of uses. The Comprehensive Plan calls for higher
density uses, and said uses will be located close to one
another to encourage a walkable community as opposed to
one where the uses are separated and discourage this
walkable aspect.
Not all responsive
changes made.
Applicant has made
no changes and is
requesting the open
space modification.
Heritage Commons – MFIA and Proffer Analysis 2014
1
MFIA
August 2014
Market and Fiscal Impact Analysis
comments/assumptions
Staff Comments Does proffer assure MFIA
will be achieved?
1 Suggests a 15 year build out *This buildout assumption is speculative. No
2 Analysis shows three five-year development
phases of commercial and residential.
The applicant has proffered a phasing schedule that states
that the applicant would need to apply for and receive a
building permit for 50,000sf of commercial in order to
construct the first 300 multifamily units. The applicant
would need to have a Certificate of Occupancy for the
50,000sf of commercial area prior to obtaining permits for
applying for the 600th or greater multifamily units. The
applicant would need to apply for and receive permits for an
additional 50,000sf of commercial prior to obtaining permits
for the next 600 multifamily units. The proffer also
addresses that a certificate of occupancy must be obtained
for the 50,000sf but there is no trigger associated with it.
No
The proffer would allow the
construction of 599
multifamily units and 184
townhouses with the
construction of only 50,000sf
of commercial area. This is
not consistent with the Patz
suggested phased approach
to maintain economic
balance, nor does this
phasing proffer guarantee to
offset impacts from
residential uses. As written,
the phasing proffer provides
little if any benefit to the
County.
3 Calls for 700,000sf of commercial which
includes a new Frederick County office
building
• States that along with the new
County office building planned for
the site, this location will be
competitive for new office space
development.
• The new County office building is the
“anchor” tenant for Heritage
Commons.
There is no commitment to construct a new County office
building on the Heritage Commons property. The analysis
utilizes this structure as a catalyst for additional commercial
space to develop. The analysis should be updated to
exclude any references to a new County facility.
No
4 1, 050 Market Rate apartments
• 150 units per phase
150 Townhouses
• Sale of 30 per year
There is no commitment in the proffer statement to build
market rate apartments. The analysis utilizes a lesser
student generation figure based on the fact that the
applicant is building “market rate” units; however, there is
No
No commitment for market
rate apartments.
Heritage Commons – MFIA and Proffer Analysis 2014
2
MFIA
August 2014
Market and Fiscal Impact Analysis
comments/assumptions
Staff Comments Does proffer assure MFIA
will be achieved?
no commitment for market rate units.
5 Commitment to construct an adjacent
70,000sf office building to house offices for
companies that do business with County
government staff. This building is planned to
be built at the same time frame as the County
office building.
There is no commitment to construct a new County office
building on the Heritage Commons property, therefore the
statement that the applicant will construct 70,000sf of office
to house companies that do business with the County is
void.
No,
There is no proffer to build a
70,000sf of office building.
6 Remaining 380,000sf of office area will
develop over the next 15 years.
100,000sf of retail is also proposed.
There is no commitment to construct this square footage.
The proffers commit to 50,000sf of commercial with the
first 300 multifamily permits (occupancy permit by 600th
permit) and a building permit for an additional 50,000sf of
commercial after the 600th permit (no occupancy trigger
for this second 50,000sf).
No
7 Indicates that at project opening that
Heritage Commons would have:
• 150 apartments available
• 30 townhouses
• 220,000sf of office
• 50,000sf of retail.
The proffered phasing does not guarantee the construction
of any commercial space, only the obligation that permits
be obtained. The Patz report shows 270,000sf of
office/retail at development opening, which includes the
County office building and the 70,000sf office building to
house users that are associated with the County office.
The applicant has no commitment that there will be a
County building on this site and the applicant has not
committed to build any square footage of commercial
space.
No
8 Heritage Commons site is well located for
office space development, particularly with
the new County office building on site. Thus,
Heritage Commons will likely be competitive
for new office space after the new County
office building is open.
The applicant has no commitment that there will be a
County building on this site.
No
9 At best, Heritage Commons will likely attract
25,000sf of office space pr year, with
expected additional County space and
possibly a large federal government space.
This pace of development would require 15
Indicates that there is 220,000 committed square feet,
there is no commitment for 220,000 committed square
feet of office.
No
Heritage Commons – MFIA and Proffer Analysis 2014
3
MFIA
August 2014
Market and Fiscal Impact Analysis
comments/assumptions
Staff Comments Does proffer assure MFIA
will be achieved?
+/- years for full build out of the “available”
sites for 380,000sf of office space over and
above the 220,000 committed square feet.
10 The projection of real estate development
over a 15 +/- year period is speculative at
best.
*The buildout assumptions for the project are speculative. N/A
11 Even with increased competition, the
apartment unit and townhome unit totals of
1,200 homes are marketable within a 15-year
development period at Heritage Commons,
an average occupancy of 80 homes per year.
Proffer allows for the construction of 200 units per year. N/A
12 To achieve 600,000sf of office space, in or
beyond the 15 +/- year development period,
will require attracting one or more sizeable
users. The site setting and new bridge over I-
81 should allow for that. However, reaching
the 600,000sf total will require a stronger
marketing effort.
*The buildout assumptions for the project are speculative.
*Report shows the constr5uction of the bridge over I-81 is
necessary to attract the necessary commercial square footage
N/A
13 To achieve 100,000sf of retail space, given the
nearby competition, at least one sizeable
tenant of 15,000+ sf will be required. This is
likely.
*The buildout assumptions for the project are speculative. N/A
14 The overall yearly impact of Heritage
Commons after buildout and full response by
the local economy would be $3.6 million in
net revenue surplus for Frederick County.
The net revenue surplus the report shows is based on full
buildout of the residential and commercial. The report takes
into considerations a number of external factors that the
County cannot control or guarantee (tax revenue sources and
calculators).
The apartment units are based on “market rate” units (which
are not proffered) and thus a much lower student generation
No
Heritage Commons – MFIA and Proffer Analysis 2014
4
MFIA
August 2014
Market and Fiscal Impact Analysis
comments/assumptions
Staff Comments Does proffer assure MFIA
will be achieved?
factor was utilized in the Patz report, which greatly reduces
the impact on the public school system.
15 Tax Revenue: The revenues to be considered
in this report are taxes collected by Frederick
County for General Fund use. These include
the property taxes, utility taxes, and other
smaller taxes.
The development should not utilize the future potential tax
contributions of the commercial landbays to offset the
residential landbays without phasing the commercial to be
built in conjunction with the residential.
No
16 MFIA uses an apartment Student Generation
Ratio (SGR) of .1
County’s DIM uses a SGR of .242. The DIM uses the county’s
average SGR for new apartments over the past eight years.
The applicant has stated that this lower SGR rate is due to the
construction of market rate multifamily units, however;
market rate units are not proffered.
No
Market rate units are not
proffered.
17 MFIA utilizes a Cost Per Pupil value of $5,845
(table 20).
Frederick County Public School’s budget is based on a Cost Per
Pupil value of $9,773
No
Pages 50-51 PPTRA was capped in 2009 at 2007 levels. Monies for PPTRA
are included in the Personal Property Tax FY 2014 amount
($41,143,379). There are no additional monies for PPTRA
from the State of Virginia for vehicles added to the tax rolls.
(Attached is a corrected amount for additional personal
property tax revenue, based on the applicant’s calculations,
with only the PPTRA amount corrected).
Report not updated to fix
this error.
Page 45 Page 45 - PPTRA is NOT in addition to the personal property
tax rate of $4.83 but a payment toward that for the qualifying
taxpayer. This error makes all future calculations of personal
property tax revenue in this presentation INCORRECT if they
use these numbers.
Report not updated to fix
this error.
Page 46 Page 46 - We find that townhouses and apartments do NOT
have 2.3 vehicles average per household. Many are one or
two individuals or small children per dwelling and often only
one vehicle. An estimate of 1.6 would be high.
Report not updated to fix
this error.
Page 47 Page 47 - This (Table 7) does show a better number for
vehicles per unit but has a tax value calculated earlier in the
Report not updated to fix
this error.
Heritage Commons – MFIA and Proffer Analysis 2014
5
MFIA
August 2014
Market and Fiscal Impact Analysis
comments/assumptions
Staff Comments Does proffer assure MFIA
will be achieved?
document using incorrect information (see Page 45 above).
Page 48 Page 48 - Personal property FF&E as shown is much higher on
offices than we experienced. Plus our value
calculation/depreciation rate on FF&E is 30% not 40%.
Report not updated to fix
this error.
Page 50 Page 50 - Error in tax rate - $0.58/$100 BPOL tax ONLY applies
to professional classifications (doctors, architects, lawyers,
and realtors) - our BPOL rate on most offices is $0.36/$100.
Report not updated to fix
this error.