PC 10-16-13 Meeting AgendaAGENDA
FREDERICK COUNTY PLANNING COMMISSION
The Board Room
Frederick County Administration Building
Winchester, Virginia
October 16, 2013
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) August 21, 2013 and September 18, 2013 Minutes ...................................................... (A)
3) Committee Reports .................................................................................................. (no tab)
4) Citizen Comments .................................................................................................... (no tab)
PUBLIC HEARING
5) Transfer of Development Right (TDR) Ordinance Revision - Revisions to the
Frederick County Zoning Ordinance to update the TDR density rights table, include a
provision for contiguous lots and addition of a TDR density conversion rate for receiving
properties.
Mrs. Perkins .................................................................................................................... (B)
ACTION ITEM
6) Rezoning #05-13 Governors Hill, submitted by Pennoni Associates Inc., to request a
minor proffer revision associated with rezoning #10-08. This revision relates to the
“Transportation Enhancements” and “Commercial Land Use” sections 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 and are identified by Property Identification Numbers 64-A-82,
64-A-83, 64-A-83A, 64-A-86, 64-A-87 and 64-A-87A in the Shawnee Magisterial
District.
Mr. Bishop ......................................................................................................................... (C)
INFORMATION/DISCUSSION ITEMS
7) Height Waivers in EM, M1, & M2 Districts – Revision to the Frederick County Zoning
Ordinance to increase the maximum heights in the EM (Extractive Manufacturing), and
M2 (Industrial General) Zoning Districts.
Mrs. Perkins ..................................................................................................................... (D)
Adjourn
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Minutes of August 21, 2013
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 August 21, 2013.
PRESENT: June M. Wilmot, Chairman/Member at Large; Roger L. Thomas, Vice Chairman/
Opequon District; Gary R. Oates, Stonewall District; J. Stanley Crockett, Stonewall District; Lawrence R.
Ambrogi, Shawnee District; H. Paige Manuel, Shawnee District; Charles E. Triplett, Gainesboro District;
Kevin Kenney, Gainesboro District; Greg L. Unger, Back Creek District; J. Rhodes Marston, Back Creek
District; Christopher M. Mohn, Red Bud District; Charles F. Dunlap, Red Bud District; Rod Williams,
County Attorney; Robert Hess, Board of Supervisors Liaison; and Martha Shickle, Winchester Planning
Commission Liaison.
ABSENT: Brian Madagan, Opequon District; J. Rhodes Marston, Back Creek District
STAFF PRESENT: Eric R. Lawrence, Planning Director; Michael T. Ruddy, Deputy Planning
Director; Mark R. Cheran, Zoning Administrator; Candice E. Perkins, Senior Planner; Lindsey Felton,
G.I.S. Analyst; and Renee S. Arlotta, Clerk.
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CALL TO ORDER
Chairman Wilmot called the August 21, 2013 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
Chairman Wilmot announced an amendment to this evening’s agenda by an additional
tab. She said Tab 8 will be “Other” and Tab 9 will be “Adjourn.” Chairman Wilmot said there were
some informational items she wanted to convey to the commission members.
Upon motion made by Commissioner Oates and seconded by Commissioner Crockett, the
Planning Commission unanimously adopted the amended agenda for this evening’s meeting.
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MINUTES
Upon motion made by Commissioner Oates and seconded by Commissioner Crockett, the
minutes of the July 17, 2013 meeting were unanimously approved as presented.
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COMMITTEE REPORTS
Sanitation Authority (FCSA) – 8/21/13 Mtg.
Commissioner Unger stated the FCSA reported there were 49 new services in the
previous quarter; rainfall for July was 5.39 inches; rainfall for June was 3.62 inches; use at the Diehl Plant
was approx. 2.2mgd; use at the Anderson Plant was approx. 2.4mgd; .84mgd were purchased from the
City of Winchester; and Daily Average Used was 5.53mgd, up from the previous 5.35mgd. The reason
for the increase was discovered to be leaks within the system and the FCSA is working to correct those.
Elevation at the Diehl Plant increased about one foot from the previous month; the Anderson Plant was
down slightly. Commissioner Unger said the FCSA reported about a production well being excavated to
feed some of the quarries; it did not produce as they hoped it would.
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Winchester Planning Commission – 8/20/13 Mtg.
Winchester Planning Commission Liaison, Martha Shickle, reported the Winchester
Planning Commission had three conditional use permit requests at their meeting yesterday, two of which
dealt with communications towers. The first request was simply a relocation of 4G equipment upgrades
at the same site and the Commission recommended approval. The second was more difficult in that it had
to do with the City’s own telecommunication systems with emergency response and after a lengthy
discussion, the Commission recommended approval by a majority vote. Ms. Shickle said the site was a
preferred site by the consultant, but there were community issues the Council will need to reconcile. Also
discussed was a text amendment initiated last month regarding restaurants and entertainment
establishments, essentially by changing the conditional use process in the downtown and other similar
districts to make the process more streamlined for those types of businesses to open and operate within
the community. Ms. Shickle said the last two items had to do with rezoning. She said the first one dealt
with corridor enhancement along Berryville Avenue, which was recommended for approval. The second
was a rezoning request from a private property developer to renovate and redevelop the Coke bottling
plant on Valley Avenue and this was forwarded to Council with a recommendation of approval.
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Development Consults Committee
Commissioner Dunlap reported some technical issues were worked out since the last
meeting. He said the Committee’s first assignment came out yesterday and pertains to a review of the
Urban Centers and Traditional Neighborhood Designs. He said comments are requested from the
members of the Development Consults Committee on these two topics, how they work, and if there are
any constrictions, etc. Commissioner Dunlap said this assignment is due within a couple weeks and
hopefully, he will have more to report at the next Planning Commission meeting.
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Comprehensive Plans & Programs Committee
Mr. Ruddy reported the CPPC will meet only once in August on Monday, the 26th, and
will not have their regularly scheduled meeting on September 9th.
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Citizen Comments
Chairman Wilmot called for citizen comments on any subject not currently on the
Planning Commission’s agenda. No one came forward to speak and Chairman Wilmot closed the citizen
comments portion of the meeting.
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PUBLIC HEARING
Rezoning #03-13 of Madison Village, submitted by Painter-Lewis, P.L.C., to rezone 51.26 acres
from RA (Rural Areas) District to 46.26 acres of RP (Residential Performance) District and 5 acres
of B2 (Business General) District with proffers. The property is located on the west side of Route
522, approximately 1,000 feet south of the intersection of Route 522 and Airport Road. The
property is further identified with P.I.N. 64-A-18 in the Shawnee Magisterial District.
Action – Tabled for 90 days
Commissioner Oates said he would abstain from all discussion and voting on this
particular item, due to a possible conflict of interest.
Deputy Planning Director, Mr. Michael Ruddy, oriented the Commission as to the
location of the subject property and surrounding land uses, as well as the County’s transportation
network. Mr. Ruddy reported the Madison Village rezoning application is generally consistent with
future land use designations of the 2030 Comprehensive Plan and the Senseny/Eastern Frederick Urban
Areas Plan, which provide guidance on the future development of the property; the property is also
located within the UDA (Urban Development Area) and the SWSA (Sewer and Water Service Area). He
said the 2030 Comprehensive Plan identifies the general area surrounding this property with a high-
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density residential land use designation, and, in general, the proposed residential designation for this
property is consistent with this residential land use designation of the Comprehensive Plan. He noted that
potential impacts of the development are addressed through the applicant’s proffer statement.
Mr. Ruddy stated the applicant has provided a GDP (Generalized Development Plan) for
the purpose of identifying the general configuration of the street providing access to and through the
project, the residential and commercial land use areas, and the improvements at the Route 522 entrance.
The GDP also shows the location of potential roundabouts internal to the site and bicycle and pedestrian
accommodations. Regarding land use, he said the applicants have proffered to limit the total number of
residential units to 640. Mr. Ruddy said it is important to recognize that no minimum amount of
residential units or density has been committed to ensure the more intensive development of this site.
Regarding access management, the applicant has proffered the signalization of the intersection of the site
driveway and Route 522. In addition, the applicant has proffered five initial transportation improvements
and right-of-way dedication to support the site’s access, along with bicycle and pedestrian facilities.
Regarding transportation, the applicant has proffered to construct the internal road system as shown on
the GDP which includes inter-parcel access and connections to adjacent properties. Mr. Ruddy stated it
was important to recognize the extension of these roads to the adjacent properties is proffered at the time
of the MDP (Master Development Plan) for the project. Specific commitments as to the timing of the
public street connections have not been proffered.
Mr. Ruddy pointed out that while the public hearing sign was placed on this property
several weeks ago, a sign has not been available and visible for the past several days. He said as the
public hearing proceeds, the Commission may need to revisit this with an appropriately recognized and
posted public hearing.
Mr. John Lewis, P.E., with Painter-Lewis, P.L.C., was representing this project. Mr.
Lewis said the owner envisions this project as a high-density residential development with a commercial
component. He said the Comprehensive Plan identifies this land as having a residential density of 12-16
units per acre. Mr. Lewis said the impacts identified in the application, including utilities, transportation,
schools, and environment, are based on the construction of 640 units on 46 acres. This number is
approaching the density of 14 units per acre. Regarding the staff comment that the application does
not place a minimum on the number of proposed units, Mr. Lewis said the construction of single-family
traditional residential lots is not contemplated on this land and low-density development is not the
purpose or the intention of this application. Mr. Lewis said the MDP he intends to submit subsequent to
the approval of the rezoning request will reflect a mix of apartments and townhouses. He said while they
have addressed impacts for single-family in the proffer statement, they are not at this point envisioning
single-family homes here. Mr. Lewis believed this amount of infrastructure will require a fairly heavy
density to support the road network they are proposing and proffering.
Regarding the transportation impacts, he said his meetings with staff have resulted in the
road improvements shown on the GDP and the concept rendering. He said the staff is emphasizing the
importance of providing public road connections to the north, west, and south, in support of long-range
transportation planning. He said the applicant has proffered to construct these roads. Initial road
construction will include Route 522 turn lanes, Route 522 entrance, the first intersection, and a connection
to the north. He noted this includes all the area adjacent to the commercial. Mr. Lewis said the applicant
is not planning to develop the commercial. He said there is considerable commercial space available
within the county and he believes the market is for the high-density residential. However, they will
reserve that space believing that if there are 640 residential units, someone will want to put commercial in
this area. Timing for the extension of roads to the western and southern boundaries will be tied to
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subsequent phases of construction and these phases will be shown on the MDP. Mr. Lewis believed the
application has adequately addressed all of the development impacts.
Commissioner Unger had questions for the applicant concerning trips per day at build out
and the impacts of those trips on Route 522. Mr. Lewis commented that all of the traffic impacts have
been identified in the TIA and they have met with VDOT representatives. Mr. Lewis added they have
proffered a traffic signal when it’s warranted at the Route 522 intersection.
Commissioner Kenney had questions about whether the applicant had consulted
surrounding property owners; what the anticipated impacts would be on local schools; and whether the
project would be constructed in phases. Mr. Lewis speculated the project would have a 15-20 year build
out.
Commissioner Thomas observed from the TIA the north-bound, left-turn lane Level of
Service (LOS) would drop to Level D at build out, and he inquired what methods the applicant would use
to mitigate that situation. Mr. Lewis said the TIA must take into account all of the future development in
the immediate area, such as the Russell 150 and parcels to the west. Mr. Lewis said if a single entrance
and one east/west road is considered, then it will be a LOS D. However, they are assuming, and in all
probability, there will be other east-west connectors that will mitigate and raise the LOS to C or better.
Commissioner Kenney asked what recreational aspect was anticipated with the FCPR
(Frederick County Dept. of Parks & Recreation). Mr. Lewis replied the amount of land the FCPR was
seeking at their initial meeting is probably not going to work. Mr. Lewis said this property is only 50
acres and considering the amount of land needed for right-of-way and environmental features, it limits the
amount of developable land the applicant can afford to give away. He said the applicant was anticipating
a recreational center/swimming pool, but the final decision about the facility will be illustrated on the
MDP.
The issue regarding impacts to schools was raised again by Commissioner Thomas. Mr.
Lewis said they have revised their proffer statement in this regard and resubmitted to the FCPS (Frederick
County Public Schools). Mr. Lewis said the applicant is doing exactly what the DIM (Development
Impact Model) requires them to do as far as the voluntary cash proffer.
Commissioner Mohn wanted to follow up on the staff’s comments regarding density and
the land use designation issue. He said in looking at the GDP and the proffers, he said it was fairly
generic with the residential use and it doesn’t provide the Commission with any assurance this would be a
mix of single-family attached and multi-family. He said based on the way this proposal is put together, at
the MDP stage the applicant could come in and legitimately put in a mix of single-family detached and
attached, or any combination of units this district would allow. Commissioner Mohn asked Mr. Lewis if
this was considered, but was something the applicant chose not to do. Commissioner Mohn was
concerned about the rational for not designating on the GDP or by proffer that this would be a mix of
single-family attached and multi-family so there is consistency when the MDP is submitted and there
would be no question about the housing type.
Discussion between the staff, the Commission, and the applicant ensued on this issue.
Mr. Ruddy stated once this property is zoned to RP, without any restricted or more defined proffers, it
could develop as single-family, traditional, all the way through apartment housing types. He said this is
the benefit of designation in the rezoning proffer statement because it provides an additional level of
regulation, an additional part of the zoning ordinance, which further refines those housing types. Mr.
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Ruddy said in this specific case, if the goal is to attain higher density residential, then the proffer
statement is definitely the place to refine that with language to state, “townhouses,” “apartments,” or “no
single-family detached.”
Commissioner Mohn commented the time to ensure this project will be in conformance
with the Comprehensive Plan is now through the rezoning; once it goes to the MDP, then it is an
administrative action to make sure the plan is in conformance with the ordinance.
Chairman Wilmot next opened the public hearing for citizen comments and called for
anyone who wished to speak to come forward.
Mr. Michael Shepherd, a resident of the Shawnee Magisterial District, said he and his
wife purchased two adjoining parcels, PINs #64-A-14 and #64-A-15, in 2003, and the parcels were
rezoned to B2 (Business General) by the Board of Supervisors on April 14, 2004. He noted both parcels
have roughly 100 feet of frontage along Route 522 and both are approximately 250 feet deep. Mr.
Shepherd said he reached an inter-parcel developmental agreement for buffers with the Russell 150
project in 2006, involving setbacks, so that he could maintain the limited space of his two parcels. Mr.
Shepherd said he learned from a meeting with Mr. Lewis, and through other sources, that Madison, LLC
will need to vacate his properties’ entrances and exits and grade the front of his property to meet sight
distance requirements for VDOT. Mr. Shepherd said he contacted Mr. Lewis on July 2, 2013, for the
purpose of arranging an agreement on four items involving their properties. He said the first item was a
land swap involving a strip of Madison, LLC land behind his two parcels. Mr. Shepherd asked to be
given that strip of land on the Madison, LLC property in exchange for his frontage needed for their
deceleration lane into their Route 522 entrances. Mr. Shepherd asked the applicant to extend the
deceleration lane approximately 100-120 feet so he could have access into his property. Mr. Shepherd
said one of the applicant’s proffers offers to give him an exit on his northernmost parcel; however, Mr.
Shepherd said his two parcels are still legally separated and he was concerned his southernmost parcel
would be left with no exit. In addition, Mr. Shepherd said there is a spite strip issue to the south, where
his connector road comes in from Route 522; he said the applicant has a small portion of land between
their road and his southernmost boundary which is not significant enough to act as a buffer and Mr.
Shepherd had asked the applicant if he would increase that distance slightly. Mr. Shepherd said he
generally supports the applicant’s project; however, he hoped an agreement can be reached between the
applicant and Frederick County to deal with these issues. Mr. Shepherd said at this time, no agreement
has been reached between him and the applicant. Mr. Shepherd explained he has no other recourse later
on other than legal action to access or develop his properties, should something not get worked out. Mr.
Shepherd said he is simply asking, and to make a point of record, that he would like to negotiate these
issues with Madison, LLC over the next few weeks and, hopefully, reach an agreement so that he can
come back and support the project whole-heartedly. Mr. Shepherd added that he has already filed site
plans for his property and his site plans are in full contradiction to what the applicant’s project is showing.
No one else wished to speak and Chairman Wilmot closed the public comment portion of
the hearing.
Mr. Ben Butler, the attorney for Madison Village, said he met yesterday with Mr. Mark
Stivers, the attorney representing Mr. and Mrs. Shepherd. Mr. Butler said unfortunately, Mr. Madison is
out of town, so nothing has yet been resolved. He commented that these two landowners are going to
have to work together because there are certain things Madison Village will need, for example, the
grading easement across the front of Mr. Shepherd’s property for sight distance, so they want to work
with Mr. Shepherd. Mr. Butler believed this evening was pre-mature to answer Mr. Shepherd’s concerns
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because Mr. Lewis has not yet defined the distance where the entrance needs to go. He said the applicant
will certainly attempt to accommodate Mr. Shepherd with access to roads and sewer. The question is
whether the agreement between the two landowners needs to precede the rezoning.
Chairman Wilmot asked the staff how Mr. Shepherd would be able to access his property.
Mr. Ruddy referred to the applicant’s GDP, pointing out the arrows depicting possible access of the two
properties to the public road connection.
Commissioner Thomas commented that since the applicant’s development of this project
would depend on reaching an agreement with Mr. Shepherd concerning the grading easement on the front
of his two properties, it would appear the Commission should have the agreement as part of the rezoning
package before approval. He said the rezoning cannot occur if the agreement is not reached.
Commissioner Mohn asked if staff is comfortable, based on the proffer language on what
is shown on the GDP, that there is a sufficient commitment by the applicant to ensure the access occurs
and can be implemented with development. Mr. Ruddy believed the access would be accommodated. He
said the applicant improved their proffer statement to insure those road connections would be done with
the first phase of development prior to occupancy, to ensure the access would not only be there for the
applicant’s project, but also to the two commercial properties.
Mr. Ruddy raised the issue again concerning the appropriate posting of the property; he
said the public hearing sign has not been posted on the property for a few days. Mr. Ruddy believed it
would be appropriate to postpone a decision until the property could be properly posted.
Because the property was not posted over the last several days, Commissioner Thomas
made a motion to table the rezoning for 90 days to allow the property to be properly posted with a public
hearing sign. This motion was seconded by Commissioner Mohn and it was unanimously passed.
BE IT RESOLVED, the Frederick County Planning Commission does hereby unanimously recommend
a 90-day tabling of Rezoning #03-13 of Madison Village, submitted by Painter-Lewis, P.L.C., in order to
allow the property to be properly posted with a public hearing sign.
(Note: Commissioner Oates abstained from discussion and voting.)
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INFORMATION/ DISCUSSION ITEMS:
Discussion of an ordinance to amend the Frederick County Code, Chapter 165, Zoning, to increase
the maximum heights in the EM (Extractive Manufacturing), M1 (Light Industrial), and M2
(Industrial General) Zoning Districts.
Senior Planner, Candice E. Perkins, reported the staff has received a request to revise the
zoning ordinance to increase the maximum height in the EM (Extractive Manufacturing), M1 (Light
Industrial), and M2 (Industrial General) Zoning Districts. The applicant has requested an increase in the
maximum height for occupied structures in the EM District from the existing 45 feet to 100 feet and an
increase in the height for unoccupied structures from 45 feet to 200 feet. The request also proposes an
increase to the maximum height in the M1 and M2 Districts from 60 feet to 100 feet. Ms. Perkins said the
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purpose for the requested EM District height increase is to allow Carmeuse Lime Company to construct a
200-foot kiln structure at their Clearbrook site for the production of lime.
Ms. Perkins stated the staff has prepared a revision to the EM District which provides for
an increase in the EM district height for all structures from 45 feet to 60 feet and an allowance for
unmanned structures to be constructed up to 200 feet in height with approval of a conditional use permit.
She said staff limited the increased by-right height to 60 feet because taller structures may not be
appropriate in all EM-Zoned areas of the County, due to their proximity to historic and residential areas,
and taller structures should be considered on a case-by-case basis. She said the permitted height in the
M1 and M2 Districts remains at 60 feet, but an allowance for 150 feet has been included with a
conditional use permit. Additional setbacks are included for all districts when the height exceeds 60 feet.
Ms. Perkins noted this item was discussed by the DRRC at their July 25, 2013 meeting.
She said the DRRC discussed the various height increases and ultimately recommended the amendments
move forward to the Planning Commission for discussion.
Commissioner Thomas said he had no problems with increasing the structure heights to
200 feet; however, he did not favor utilizing a conditional use permit (CUP) to allow it. Commissioner
Thomas believed this was the wrong use for a CUP because of the connotation associated with them
particularly because they are required to be reviewed and renewed on an annual or bi-annual basis. He
said the perception it creates is the CUP could be revoked at some future point in time, if it is viewed
negatively. Commissioner Thomas said this could make it almost impossible for a developer to acquire
financing or to invest money privately.
Ms. Perkins explained that when staff has presented amendments for height increases in
the past, they’ve been met with mixed reviews. She said this was the reason why staff has suggested the
ability of the Board of Supervisors to have oversight on these uses and to make sure wherever the
additional height is proposed, it is an appropriate location. Regarding the revocation issue, she said the
industrial/commercial CUPs are somewhat different from a home occupation CUP in that the
industrial/commercial CUP would have conditions directly related to the height increase, such as
additional landscaping, screening, or setbacks; those conditions would be implemented on a site plan that
would need approval by Frederick County. Ms. Perkins said if a violation were to occur with the CUP,
Frederick County would solely be seeking compliance, not revocation. Ms. Perkins added that many
localities in Virginia utilize CUPs for height increase purposes.
Commissioner Mohn shared the concern about a CUP, but believed there was a role for
some additional oversight. He said those areas with existing zoning and possible impacts in particular
would need to be considered further. He commented the CUP may not be the correct mechanism, but if
the Commission is considering different alternatives or allowing flexibility in design or intensity within
the industrial/commercial districts, there may be a better mechanism, such as another tier of approval
which doesn’t have any connotation or suggestion it could be revoked. Commissioner Mohn suggested
the possibility of a special exception, or something along those lines, which is a level above a CUP or a
special use permit that would provide some greater degree of assurance to a business or the economic
development community who are making this investment, that if their site plan is approved consistent
with the special exception, they are finished. However, in the process of getting that special exception
approved, there is a full opportunity for the Board of Supervisors to consider any unique impacts and to
apply conditions that would address impacts. Commissioner Mohn said the Commission may be moving
in the direction from a complexity perspective where it wants to protect rights and investment, and
provide those assurances, but still allow the community an opportunity to take a look and provide input.
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Commissioner Oates stated all the members of the DRRC were in agreement there
wouldn’t be any conditions for revoking a permit. He said the conditions the DRRC would be seeking
would solely be with the proposed height and appearance, and the applicant would simply be proffering
what they’re constructing to the Board in order to get the CUP. Commissioner Oates said the DRRC also
discussed allowing individual properties to apply for the CUP or, in areas with a master-planned business
park, placing the entire park under one CUP.
Commissioner Unger commented these same issues were extensively discussed at the
DRRC meeting. He believed the language proposed was the best suited for this situation.
Ms. Perkins assured the Commission that before the Board of Supervisors’ discussion,
the staff would investigate the alternative options of allowing Board review and approval without the
CUP connotation. Ms. Perkins said the intent of what the Commission is seeking here is clear.
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Discussion of an ordinance to amend the Frederick County Code, Chapter 165, Zoning, to update
the TDR (Transfer of Development Rights) table to include a provision for contiguous lots and
addition of a TDR density conversion rate for rural to urban transfers.
Senior Planner, Candice E. Perkins, reported the staff has drafted three proposed changes
to the Transfer of Development Rights (TDR) Ordinance that was originally adopted in 2010. In addition
to the ordinance being updated to be consistent with the RP changes, she said an additional reason for the
changes is to ensure the use of TDR’s remain a beneficial option for future development in lieu of
rezoning. Ms. Perkins reviewed each of the proposed changes separately. Revision #1, Transfer of
Development Rights (TDR) Density Table. She stated this revision will bring the TDR density
maximums into conformance with the updated RP’s (Residential Performance) density maximums
adopted in January 2013. She said it includes increasing the RP allowable density when using TDRs for a
development; and increasing the RA (Rural Areas) permitted maximum density using TDR’s to be
consistent with the maximum RP density using TDRs. Revision #2, Contiguous Sending Properties. She
stated this revision to the TDR ordinance includes a minor addition which allows the use of contiguous
parcels for TDR transfers. For example, one property may have State road frontage, but another
contiguous property under the same ownership may not. Revision #3, Density Right Conversion Rate.
She stated this revision to the TDR ordinance includes a density right conversion that would apply to
density rights being applied to receiving properties. The conversion would be based on the type of
housing unit being developed on the receiving property, either single-family detached, single-family
attached, or multifamily. Ms. Perkins explained that when utilizing TDRs to develop receiving
properties, the following conversion would apply: Single-family detached dwellings: 1 TDR right = 1
single-family detached dwelling unit; Single-family attached dwellings: 1 TDR right = 1.5 single-family
attached dwelling unit; and Multifamily dwellings: 1 TDR right = 1.7 multifamily dwelling units.
Ms. Perkins reported that Revision #1 was discussed by the DRRC on April 25, 2013 and
it was discussed by the Planning Commission on May 15, 2013. She noted that after the Commission
discussion, it was put on hold to await the other two ordinance amendments, so all the revisions could be
brought forward as one package. She said the DRRC discussed Revisions #2 and #3 at their meeting on
July 25, 2013. Ms. Perkins said the staff is seeking comments from the Commission to forward to the
Board of Supervisors.
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Commissioner Oates referred to Revision #2, Contiguous Parcels, and inquired if this was
written to mean the lot with State road frontage will have to give up its rights before the ones behind it
could. Ms. Perkins said the properties would have to be submitted as one single package. She said if all
the parcels were contiguous and the developer wanted to bring one in first and the remainder of the
contiguous parcels later, it would be possible. She said the developer could also retain rights for the
parcel that meets requirements and retain rights for the others.
No other questions or issues were raised regarding the TDR Ordinance revisions.
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OTHER
Information Regarding the MDP for Shenandoah
Chairman Wilmot said Commissioners may have been expecting to see the MDP for
Shenandoah back on the agenda after it was tabled by the Commission to allow time for the two
developers to communicate regarding the severing of the MDP. Chairman Wilmot stated the Commission
had apparently exceeded its responsibilities and the Board of Supervisors took care of the severing of the
commercial property at their meeting this past week.
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Information Regarding the Study on Business Friendly Group
Planning Director, Eric R. Lawrence, stated that as a result of the Business Friendly
Study, the group has three projects to pursue. He said two of the projects will go to the Development
Review and Regulations Committee (DRRC). Those two projects involve reviewing the MDP process, as
well as reviewing the landscape ordinance, to make sure those processes are functioning properly, are
necessary, and meet business-friendly standards. Mr. Lawrence said the third project assigned is to
evaluate the Development Impact Model to determine how credits may be made available. He said this
study will go through the Development Impact Model Oversight Committee (DIMOC). Mr. Lawrence
said the Planning Commission will be kept informed on these various discussions.
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Housing Report
Chairman Wilmot announced the housing report for the first six months of 2013. She
said the total housing starts for Frederick County for 2013 so far are 247 new housing units; the total for
2012 was 171.
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PlanVirginia - Citizens Planning Education Association of Virginia, Inc.
Chairman Wilmot stated that PlanVirginia (www.planvirginia.com) is the professional
organization which provides planning personnel with opportunities for additional knowledge. She said
one of the programs is a Planning Commissioners’ Certification Program and she encouraged members
who are not yet certified to look into this program. Chairman Wilmot said there is also a Commonwealth
Planning and Zoning Conference on October 13–15, which is open to all the Planning Commission
members and will be held in Roanoke, Virginia.
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Cancellation of the Planning Commission’s September 4, 2013 Meeting
Chairman Wilmot announced there were no pending items for the Commission’s
September 4, 2013 meeting.
Upon motion made by Commissioner Oates and seconded by Commissioner Thomas, the
Planning Commission canceled their September 4, 2013 meeting by a unanimous vote.
-------------
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 Manuel and unanimously
passed to adjourn the meeting at 8:30 p.m.
Respectfully submitted,
____________________________
June M. Wilmot, Chairman
____________________________
Eric R. Lawrence, Secretary
Frederick County Planning Commission Page 3012
Minutes of September 18, 2013
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 September 18, 2013.
PRESENT: Roger L. Thomas, Vice Chairman/ Opequon District; Gary R. Oates, Stonewall District;
J. Stanley Crockett, Stonewall District; Lawrence R. Ambrogi, Shawnee District; H. Paige Manuel,
Shawnee District; Charles E. Triplett, Gainesboro District; Kevin Kenney, Gainesboro District; Greg L.
Unger, Back Creek District; J. Rhodes Marston, Back Creek District; Christopher M. Mohn, Red Bud
District; Charles F. Dunlap, Red Bud District; Roderick B. Williams, County Attorney; Robert Hess,
Board of Supervisors Liaison; and Martha Shickle, Winchester Planning Commission Liaison.
ABSENT: June M. Wilmot, Chairman/Member at Large; Brian Madagan, Opequon District
STAFF PRESENT: Eric R. Lawrence, Planning Director; Michael T. Ruddy, Deputy Planning
Director; John A. Bishop, Deputy Director-Transportation; and Renee S. Arlotta, Clerk.
-----------
CALL TO ORDER
Vice Chairman Thomas called the September 18, 2013 meeting of the Frederick County
Planning Commission to order at 7:00 p.m. Vice Chairman Thomas commenced the meeting by inviting
everyone to join in a moment of silence.
-------------
ADOPTION OF AGENDA
Upon motion made by Commissioner Oates and seconded by Commissioner Kenney, the
Planning Commission unanimously adopted the agenda for this evening’s meeting.
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Frederick County Planning Commission Page 3013
Minutes of September 18, 2013
COMMITTEE REPORTS
Comprehensive Plans & Programs Committee (CPPC) – 8/26/13 Mtg.
Commissioner Mohn reported the CPPC discussed public facilities and the 2030
Comprehensive Plan. He said the committee also discussed the Southern Frederick Area Plan, and
particularly discussed the upcoming public input session scheduled for Wednesday, September 25, 2013,
at 7:00 p.m. at the Aylor Middle School.
-------------
Sanitation Authority (FCSA) – 9/17/13 Mtg.
Commissioner Unger gave the following report from the FCSA: Total customer base for
water is 13,875; customer base for sanitation is 13,394; the difference from last quarter is up by 49;
rainfall for last month was 2.66 inches, which is down from the previous month; average monthly rainfall
is 3.64 inches; the Diehl Plant provided 2.29mgd; the Anderson Plant provided 2.3mgd; .82mgd was
purchased from the City of Winchester; Average Daily Use is 5.45mgd, which is down somewhat from
the previous month. The elevation at the Diehl Plant decreased by a couple feet, which is normal for this
time of year; a solid reading was not available from the Anderson Plant; and flows from the Parkins Mill
Plant were average or a little above. H.P. Hood is expanding with a $6 million facility, but is still
negotiating a sewer and water contract with the Sanitation Department because their facility is releasing
more phosphate than the plant can handle. They anticipate getting this issue resolved within the next
month.
-------------
Winchester Planning Commission – 9/17/13 Mtg.
Winchester Planning Commission Liaison, Ms. Martha Shickle, reported the Winchester
Planning Commission had two items of discussion. The first item was a rezoning at 317 South Cameron
Street, more commonly known as “the Old Jail,” and was recommended for approval to the City Council.
The current zoning is RB1 and the rezoning would convert the property to B1. She said the second item
was an initiation of a text amendment regarding a time line for tabling rezoning requests. This item will
be brought back to the Commission next month for a public hearing.
-------------
Development Consults Committee
Commissioner Dunlap reported the Development Consults Committee (DCC) completed
its first tasks. There were a good number of respondents on the various questions on the implementation
of the Urban Centers and Traditional Neighborhood Designs. He said those questions have been
compiled and the Planning Department will forward those to the Board of Supervisors for the next
planning workshop.
Frederick County Planning Commission Page 3014
Minutes of September 18, 2013
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Citizen Comments
Vice Chairman Thomas called for citizen comments on any subject not currently on the
Planning Commission’s agenda. No one came forward to speak and Vice Chairman Thomas closed the
citizen comments portion of the meeting.
-------------
PUBLIC HEARING
Rezoning #04-13 of The Overlook, submitted by Greenway Engineering, Inc., to rezone 55.46 acres
as follows: 14.183+ acres from RP (Residential Performance) District to RA (Rural Areas) District;
7.098+ acres from RP (Residential Performance) District to B2 (Business General) District; 10.040+
acres from RA (Rural Areas) District to RP (Residential Performance) District; and 24.145+ acres
to remain RP (Residential Performance) District with proffers. The property is located on the
south side of Berryville Pike (Route 7) near and adjoining the Valley Mill Road intersection. The
properties are further identified with P.I.N.s 55-A-161, 55-A-165A, 55-A-166, 55-A-167, 55-A-167A,
55-A-168, 55-A-174A, 55-A-174B, 55-A-174D, and a portion of 55-A-165. All parcels are within the
Red Bud Magisterial District.
Action – Recommended Approval with Proffers
Deputy Planning Director, Michael T. Ruddy, stated this property was involved in a
previous rezoning, the Carriage Park rezoning, which was approved by the Board of Supervisors back in
2007. Mr. Ruddy said this is a redesign of that property, in addition to a more thorough packaging which
includes surrounding properties. Mr. Ruddy described the location, as well as existing and surrounding
zoning. Mr. Ruddy showed the Generalized Development Plan (GDP) which is proffered with this new
rezoning package, pointing out the relocation of Valley Mill Road as it runs through the property and its
intersection with Route 7, as well as the area of commercial land use and the residential land bays. He
noted the rural areas south and east of relocated Valley Mill Road which surround the environmental
features, Abrams Creek, and the existing Valley Mill Farm, a historical agricultural resource in Frederick
County.
Mr. Ruddy stated the rezoning application with its RP and B2 designations on the GDP is
consistent with the County’s Comprehensive Plan and the Senseny/Eastern Frederick Urban Areas Plan.
Mr. Ruddy said the largest component of this application may well be the transportation improvements,
particularly the relocation of Valley Mill Road. He said it provides a better connection with Route 7, the
ultimate design right-of-way for the four-lane connection of Valley Mill Road, and the initial construction
of the intersection of Route 7 and Valley Mill Road, and the ultimate section back to the commercial
entrance. He said it can be easily said that the transportation package with this project is consistent and
furthers Frederick County’s Comprehensive Plan. Mr. Ruddy said that many of the potential impacts
have been addressed with the proffer package through a variety of methods. He pointed out two items to
be considered: the Development Impact Model Values utilize 2012 versus 2013 numbers; and the number
Frederick County Planning Commission Page 3015
Minutes of September 18, 2013
of public street entrances serving the development. He commented the applicant has proposed four
entrances along relocated Valley Mill Road, as opposed to the preferred three.
Mr. Evan A. Wyatt, with Greenway Engineering, Inc., introduced himself along with Mr.
Michael Lickman, who prepared the traffic study for the rezoning, and Mr. and Mrs. Stafford, the
property owners and applicants. Mr. Wyatt began his presentation by talking about the history of this
project from its origins with the Carriage Park rezoning to the present. Mr. Wyatt stated that since the
original rezoning, Frederick County has revised their RP and R4 ordinance and because of the promotion
of density, the applicant was able to do some creative design. In conformance with Comprehensive Plan,
they created a commercial land bay near Route 7; the portions of the property best suited for residential
development remain RP; and the properties which are less enticing for residential development will be
down-zoned to either be absorbed into the Stafford farm or other portions dedicated to VDOT for future
improvements.
Mr. Wyatt said the proffers provide for the complete right-of-way for the ultimate section
of Valley Mill Road; the construction of Valley Mill Road from its existing alignment to Route 7,
regardless of the first phase of development; the installation of a traffic signal and median; turn lanes on
Route 7, and, the full section from the signal to the commercial land bay is to be constructed and will be
transitioned to a two-lane section with turn lanes for the residential entrances. Regarding the concern for
the number of entrances along Valley Mill Road, Mr. Wyatt said the distances between the proposed
entrances are 500 feet, 650 feet, 650 feet, and 700 feet. He said VDOT standards for access management
along collector roads allow entrances every 335 feet and with a signalized intersection back to an un-
signalized entrance, VDOT requires 440 feet. Mr. Wyatt said they are actually entitled to place five
entrances by VDOT code along the residential property. He said they did not believe that was appropriate
and the distances between their entrances are actually twice what VDOT would allow them to do. The
proffer also requires the entrances to have turn lanes, so through traffic along Valley Mill Road will not
be impeded by turning vehicles.
Mr. Wyatt next addressed the second of the staff’s comments, the issue of the use of 2012
values in the fiscal impact model. Mr. Wyatt noted that when the rezoning package was put together, the
applicants were concerned with proffering the full amount of the 2012 DIM values. One of the items in
an earlier version of the proffer statement was the recognition of commercial credit with development of
the property. He said this was a concern with staff and subsequently, after discussion, the applicant
removed their ability to gain the commercial credit. Mr. Wyatt said the package was almost ready to go
in March; however, a proffer indicating the Board would support a revenue sharing application for this
project, raised a concern with the County Attorney. Mr. Wyatt noted there are less than 300 residential
units and only about 35,000-40,000 square feet of commercial use available to fund a considerable
amount of road improvements for the project, so assistance is needed. He said after further discussion
with the County Attorney, the applicant agreed to do a separate document, to be considered by the Board
of Supervisors. He explained it is basically a development agreement stating what the applicant and the
Board will commit to, which is to support revenue sharing and the abandonment of a portion of Valley
Mill Road shown on the GDP. Mr. Wyatt commented this arrangement took some time to put together,
which is why they are here this evening instead of back in March when they could have filed. Mr. Wyatt
added the applicant is not seeking value credit for right-of-way provided or commercial development.
Frederick County Planning Commission Page 3016
Minutes of September 18, 2013
Commissioner Unger said he was contacted by a resident along Eddy Lane who was
concerned about the possibility of his property becoming land-locked. Mr. Wyatt said Frederick County
and VDOT would like the existing median removed because the applicants are introducing a new median
with a traffic signal. Mr. Wyatt said the proffer commits to removing the existing median as part of
development; however, it continues to allow traffic coming down Route 7 to make a right-in or right-out.
He said traffic heading left, towards the City of Winchester, will need to go up a couple hundred feet to a
median crossing and make a U-turn. Mr. Wyatt said the improvements will not land-lock the resident’s
property.
Commissioner Kenney asked what will become of the Stafford property. Mr. Wyatt
replied the property is zoned agricultural; he said there is an existing house, in which Mr. and Mrs.
Stafford reside, and it is included on the State and National Register. He said their intention is to keep the
farm and take the traffic burden away from the front of their house.
Vice Chairman Thomas opened the public hearing to citizen comments and called for
anyone who wished to speak, either in favor or opposition, to come forward. No one came forward to
speak and Vice Chairman Thomas closed the public comment portion of the hearing.
Commissioner Oates remarked that the proposal for Carriage Park back in 2007 was
poorly designed and packaged. Commissioner Oates said he supported this rezoning application because
it definitely was an improvement over the old version.
Commissioner Dunlap said he was not on the Commission during the Carriage Park
rezoning back in 2007; however, after reviewing this submittal, he believed it was a vast improvement
over the older version. Commissioner Dunlap said he liked the transportation aspect and the connection
to Route 7. He thought there would be considerably less environmental impact. He did not have an issue
with the DIM value that’s been proffered or the number of entrances on Valley Mill Road.
Commissioner Triplett commented that he supports this rezoning application although he
did not favor the project submitted back in 2007. Commissioner Triplett also commented that he
appreciated the time the Commissioners had with Mr. Wyatt to review this application. He said it was
very helpful and he was well informed of the project in time for the public hearing.
Commissioner Mohn made a motion to recommend approval of Rezoning Application
#04-13 of The Overlook. This motion was seconded by Commissioner Dunlap and was unanimously
passed.
BE IT RESOLVED, that the Frederick County Planning Commission does hereby unanimously
recommend approval of Rezoning #04-13 of The Overlook, submitted by Greenway Engineering, Inc., to
rezone 55.46 acres as follows: 14.183+ acres from RP (Residential Performance) District to RA (Rural
Areas) District; 7.098+ acres from RP (Residential Performance) District to B2 (Business General)
District; 10.040+ acres from RA (Rural Areas) District to RP (Residential Performance) District; and
24.145+ acres to remain RP (Residential Performance) District with proffers.
(Note: Commissioners Wilmot and Madagan were absent from the meeting.)
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Frederick County Planning Commission Page 3017
Minutes of September 18, 2013
OTHER:
SOUTHERN FREDERICK AREA PLAN
Deputy Planning Director, Michael T. Ruddy, reported the kick-off meeting for the
Southern Frederick Land Use Plan is scheduled for Wednesday evening, September 25, 2013, at 7:00 p.m.
at the Robert E. Aylor Middle School, 901 Aylor Road.
-------------
CANCELLATION OF THE PLANNING COMMISSION’S OCTOBER 2, 2013 MEETING
Vice Chairman Thomas announced there were no pending items for the Commission’s
October 2, 2013 meeting.
Upon motion made by Commissioner Oates and seconded by Commissioner Dunlap, the
Planning Commission canceled their October 2, 2013 meeting by a unanimous vote.
-------------
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 Dunlap and unanimously
passed to adjourn the meeting at 7:30 p.m.
Respectfully submitted,
____________________________
Roger L. Thomas, Vice Chairman
____________________________
Eric R. Lawrence, Secretary
Frederick County Planning Commission
TDR Ordinance Revisions
September 30, 2013
Page 2
In reviewing the TDR Ordinance and discussions with parties interested in utilizing TDR rights
for their developments, it has come to Staff’s attention that the projected value of a TDR would
only be economically feasible to utilize when developing a single-family detached development
and would not be attractive when developing single-family attached (townhouse) or multifamily
units. With a rezoning, the capital impact a dwelling unit has on the County is based on the
development impact model which is broken down by housing type. As outlined in the impact
model output, a single-family dwelling unit has a higher impact on capital facilities than a
multifamily unit.
The development impact model currently calculates the capital facility impacts as follows:
• Single-Family Dwelling Unit = $ 19,600
• Town Home Dwelling Unit = $ 13,062
• Apartment Dwelling Unit = $ 11,339
A single-family dwelling unit constructed in both the rural areas and the urban areas has an
impact of $19,600 on capital facilities (based on the 2013 Development Impact Model). This
impact doesn’t include the impact on the local transportation network. Dwellings constructed in
the urban areas typically have access to a road network that is better capable of accommodating
the traffic generated by new dwellings, while dwellings constructed in the rural areas access the
existing rural road network which typically is not constructed in a way to accommodate
additional units. Additionally, state transportation funding programs favor transportation in urban
and suburban areas. While the use of TDR’s prohibit the County from collecting proffers and
capital facility impacts, the County does not lose out by the use of TDR’s. The County absorbs
the fiscal and transportation impacts of rural development either way, and the use of TDR’s
allows those units to be transferred to the urban areas which are better equipped to handle that
development.
To help bridge this value gap, staff has prepared a revision to the TDR ordinance that allows for
the following:
• When utilizing TDR’s to develop single-family detached dwellings on a receiving
property, one TDR density right can be used to develop one single-family detached
dwelling unit.
• When utilizing TDR’s to develop single-family attached dwellings (townhouses) on a
receiving property, one TDR density right can be used to develop 1.5 single-family
attached dwelling units.
• When utilizing TDR’s to develop multifamily dwellings on a receiving property, one
TDR density right can be used to develop 1.75 multifamily dwelling units.
By including a conversion rate, it allows the TDR value to remain fair and stable while allowing
a developer to construct various housing types.
Review History
Revision #1 was discussed by the DRRC on April 25, 2013 and by the Planning Commission on
May 15, 2013. The Planning Commission recommended that the density updates be forwarded to the
Board of Supervisors for review. Following the Planning Commission review of the density table
updates, staff drafted additional changes to the TDR ordinance and the previously discussed updates
Frederick County Planning Commission
TDR Ordinance Revisions
September 30, 2013
Page 3
were put on hold so all the TDR updates could be processed concurrently. Revisions #2 and #3 were
discussed by the DRRC on July 25, 2013. The DRRC was supportive of the proposed
amendments being forwarded to the Planning Commission for discussion.
The Planning Commission discussed all three revisions at their meeting on August 21, 2013; the
Planning Commission forwarded the amendments to the Board of Supervisors for discussion.
The Board of Supervisors discussed the proposed revisions at their meeting on September 9,
2013. The Board of Supervisors requested additional information regarding the ability to apply
TDR density rights to receiving properties zoned RA (Rural Areas) and whether that was the
original intent of the TDR Program. Ultimately the Board did send the amendments forward for
public hearing.
These items are presented for public hearing. A recommendation from the Planning
Commission on these amendments is sought. Please contact me if you have any questions.
Attachments: 1. Revised ordinance with additions shown in bold underlined italics and
deletions shown with strikethrough.
2. Adopted RP Density table.
3. Development Impact Model.
4. September 19th Board of Supervisors Friday Mailing Package regarding
TDR Receiving Properties
CEP/pd
CHAPTER 165 - ZONING
1
ARTICLE III
Transfer of Development Rights (TDR) Program
Part 301 – Establishment and Purpose.
§165-301.01. Purpose.
Pursuant to the authority granted by §§ 15.2-2316.1 and 2316.2 of the Code of Virginia, there is
established a transfer of development rights (TDR) program, the purpose of which is to transfer
residential density from eligible sending areas to eligible receiving areas and/or transferee through a
voluntary process for permanently conserving agricultural and forestry uses of lands and preserving
rural open spaces, and natural and scenic resources. The TDR program is intended to supplement land
use regulations, resource protection efforts and open space acquisition programs and encourage
increased residential density where it can best be accommodated with the least impacts on the natural
environment and public services by:
A. Providing an effective and predictable incentive process for property owners of rural and
agricultural land to preserve lands with a public benefit; and
B. Implementing the Comprehensive Policy Plan by directing residential land uses to the Urban
Development Area (UDA); and
C. Providing an efficient and streamlined administrative review system to ensure that transfers of
development rights to receiving areas are processed in a timely way and balanced with other county
goals and policies, and are adjusted to the specific conditions of each receiving area.
§165-301.02. Applicability.
The procedures and regulations in Article III of Chapter 165 shall apply to the transfer of development
rights from land qualifying as sending properties to land qualifying as receiving properties and/or to a
transferee. Land utilizing transferred development rights may be subdivided at an increased density
above the base density specified by Tables 1-3 1 and Table 2 in §165-302.03 in applicable receiving
areas. All development utilizing transferred development rights shall conform to the guidelines
contained in the Comprehensive Policy Plan.
§165-301.03. Right to Transfer Development Rights; General Provisions.
A. A development right shall be transferred only by means of documents, including a covenant to
which Frederick County is party and any appropriate releases, in a recordable form approved by the
Director of Planning and Development or his designee. The covenant shall limit the future
construction of dwellings on a sending property to the total number of development rights
established by the zoning of the property minus all development rights previously transferred in
accordance with this chapter, any development rights previously extinguished or limited as a result
of a recorded covenant against the property, the number of development rights to be transferred
CHAPTER 165 - ZONING
2
by the proposed transaction, and the number of existing single-family detached dwellings on the
sending property. If a sending property contains no dwelling units, a development right equal to
that for one single-family dwelling must be maintained for the property, except that, for properties
larger than one hundred (100) acres, one development right equal to that for one single-family
dwelling must be maintained for each multiple of one hundred (100) acres, or fraction thereof,
contained within the sending property.
B. Each transferor shall have the right to sever all or a portion of the rights to develop from the parcel
in a sending district and to sell, trade, or barter all or a portion of those rights to a transferee
consistent with the purposes of §165-301.01 so long as the conditions of §165-301.03A are met.
C. Any transfer of development rights pursuant to this Chapter authorizes only an increase in
maximum density and shall not alter or waive the development standards of the receiving district,
nor shall it allow a use otherwise prohibited in a receiving district.
D. Transfer of development rights shall not be available for the following:
1) Portions of lots owned by or subject to easements (including, but not limited to, easements of
roads, railroads, electrical transmission lines, gas or petroleum pipelines) in favor of
governmental agencies, utilities and nonprofit corporations.
2) Land restricted from development by covenant, easement or deed restriction.
E. Any transfer of development rights shall be recorded among the land records of Frederick County,
Virginia.
F. Value of transferable development rights. The monetary value of transferred development rights is
completely determined between the seller and buyer.
Part 302 – Sending and Receiving Properties
§165-302.01. Sending Properties.
A. For the purposes of this chapter, a sending property must be an entire tax parcel or lot qualified
under §165-302.01B of this section. Sending areas may only be located within the rural areas
outside of the Urban Development Area (UDA) and the Sewer and Water Service Area (SWSA), and
zoned RA (Rural Areas), as described in the Comprehensive Policy Plan and the RA Zoning District of
this Chapter. A sending property shall be maintained in a condition that is consistent with the
criteria in this section under which the sending was qualified.
CHAPTER 165 - ZONING
3
B. Qualification of a sending property shall demonstrate that the site contains a public benefit such
that the preservation of that benefit by transferring residential development rights to another site is
in the public interest, according to all of the following criteria:
1) Designated in the Comprehensive Policy Plan as Rural Area;
2) Designated on the Zoning Maps of Frederick County as being zoned RA (Rural Areas) and be
located outside of the Urban Development Area (UDA) and the Sewer and Water Service Area
(SWSA);
3) Designated on the Sending Areas Map;
4) Comprised of at least twenty (20) acres in size; and
5) Qualified for subdivision in accordance with Chapter 144 of the Frederick County Code including,
but not limited to, meeting all state road and access requirements.
For TDR purposes, if the
sending property consists of more than one parcel of land, at least one lot must meet all the
subdivision requirements of Chapter 144; this lot shall be deemed the primary lot. Additional
parcels that do not meet the subdivision requirements but are contiguous to the primary lot
may be added to the sending property, if they are all under common ownership. For purposes
of this section, lots divided by a street are considered contiguous if the lots would share a
common lot line if the street was removed.
C. If a sending property has any outstanding code violations and/or unpaid taxes, the owner shall
resolve these violations, including any required abatement, restoration, or payment of penalties or
taxes, before the property may be qualified as a sending property in the transfer of development
rights program.
§165-302.02. Receiving Properties.
A. Except as provided in subsections B and C of this section, in order to be eligible as a receiving
property, a property must be:
1) Located in one of the following zoning districts:
a. RP (Residential Performance) District;
b. R4 (Residential Planned Community) District; or
c. RA (Rural Areas) District; and
2) Designated on the Receiving Areas Map;
3) Served by public water and public sewer;
CHAPTER 165 - ZONING
4
4) Served by state-maintained roads or have the ability to utilize private roads in the RP District as
permitted by Chapter 165 or Chapter 144.
5) Located within the Urban Development Area (UDA) or a designated and defined Rural
Community Center as identified in the Comprehensive Policy Plan; and
6) Identified in the Frederick County Comprehensive Policy Plan for residential land uses.
B. A property is not eligible as a receiving property if the transfer of development rights to the
property would adversely impact regionally or locally significant historical resources or naturally
sensitive areas as specified in the Comprehensive Policy Plan.
C. A property is not eligible as a receiving property if the property is located within the airport support
area as identified by the Comprehensive Policy Plan.
D. If a receiving property has any outstanding code violations and/or unpaid taxes, the owner shall
resolve these violations, including any required abatement, restoration, or payment of penalties or
taxes, before the property may be qualified as a receiving property in the transfer of development
rights program.
E. A receiving property may accept development rights from one or more sending properties, up to a
maximum density specified in Tables 1-3 1 and Table 2 in §165-302.03.
§165-302.03. Calculation of development rights.
A. The number of residential development rights that a sending property is eligible to send to a
receiving property and/or transferee shall be determined by applying the sending property base
density established in subsection C of this section to the area of the sending property after
deducting all the following:
1. Development rights previously transferred in accordance with this chapter;
2. Development rights previously extinguished or limited as a result of a recorded
conservation easement or similar covenant against the property;
3. The number of existing single-family dwellings on the sending property;
4. The amount of any submerged land (i.e., lakes, ponds, streams), floodplains, and steep
slopes as determined by Frederick County GIS Data.
5. The amount of any land contained within easements (including, but not limited to,
easements of roads, railroads, electrical transmission lines, gas or petroleum pipelines)
in favor of governmental agencies, utilities and nonprofit corporations.
B. If a sending property contains no dwelling units, a development right equal to that for one single-
family dwelling must be maintained for the property. Properties with over 100 acres shall be
required to retain the number of development rights required in accordance with Section 165-
301.03A.
CHAPTER 165 - ZONING
5
C. For the purposes of calculating the amount of development rights a sending property can transfer,
the square footage or acreage of land contained within a sending property shall be determined by a
valid recorded plat or survey, submitted by the applicant property owner and that has been
prepared and stamped by a land surveyor licensed in the Commonwealth of Virginia.
D. For the purposes of the transfer of development rights program only, sending sites zoned RA (Rural
Areas) shall have a base density of one dwelling unit per five acres for transfer purposes.
E. Any fractions of development rights that results from the calculations in subsection A of this section
shall not be included in the final determination of total development rights available for transfer.
F. Development rights from one sending property may be allocated to more than one receiving
property and/or transferee and one receiving property and/or transferee may accept development
rights from more than one sending property.
G. The determination of the number of residential development rights a sending property has available
for transfer to a receiving property and/or transferee shall be documented in a TDR LETTER OF
INTENT to issue a TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued by the Director of
Planning and Development or his designee, pursuant to the provisions of this Part 302.05 of Chapter
165, and shall be considered a final determination, not subject to revision. Such a determination
shall be valid only for purposes of the transfer of development rights program and for no other
purpose. Any changes to the proposed sending property shall void any issued letters of intent.
H. A sending property transferee may extinguish TDR density rights, sever and hold TDR density rights,
sever and sell TDR density rights, or apply TDR rights to a receiving property in a receiving district in
order to obtain approval for development at a density greater than would otherwise be allowed on
the land in the receiving district, up to the maximum density or intensity outlined in the table below:
CHAPTER 165 - ZONING
6
Table 1
Maximum Density Allowed in Zoning Districts through Transfer of
Development Rights (TDR) Program
Zoning District Property
Size And Land Use
In Acres
Maximum
Density in
Dwelling
Units per
Acre
Maximum Density
Without
TDRs
Dwelling Units per Acre with TDR
Transfers
for
RA
(Rural Areas)
RA
Receiving
Property
1 Unit Per 5
Acres
Maximum Density allowed in the
RP District within the UDA per § 165-
402.05
RA
Density for qualified RA Receiving
Properties in the UDA shall be
consistent with the allowable RP
Density Utilizing TDR’s (see below)
(Rural Areas)
RA
*For Designated Rural Community Centers
Receiving
Property
1 Unit Per 5
Acres
1 Unit Per Acre in Designated Rural
Community Centers served by
Community Septic Systems
RP
(Residential Performance)
*Density by parcel size for all other housing
types and developments with mixed housing
types)
<10
*See § 165-402.05 for maximum percentage
of multifamily housing
10-100
>100
0-10
10.1-25
25.1 -50
10
50.1 +
5.5
4
10
6
6
6
15
8
6
15
10
10
10
RP
(Residential Performance)
Multifamily Residential Buildings & Age
Restricted Multifamily
Garden Apartments
Townhouse (single family attached)
N/A
20
10
10
24
15
R4
15
(Residential Planned Community)
>100
4
6
10
CHAPTER 165 - ZONING
7
I. TDR density rights may be converted to bonus density rights by an increase in the residential density
on the receiving property, based on the conversion factors in the table below:
Table 2
Maximum Density Allowed in Zoning Districts through Transfer of
Development Rights (TDR) Program
Designated
Sending Area
Each Transferred Density Right May Be
Converted to This Bonus Density in the
Receiving Area
Sending Area #1 1 Density Right =2 Dwelling Units
Sending Area #2 1 Density Right =1.5 Dwelling Units
Sending Area #3 1 Density Right =1 Dwelling Unit
1. Allowable sending area
bonus density remains subject to the maximum density provisions
outlined in Table 1 of §165-302.03H.
2. If properties located in Sending Area #1 (designated Agricultural and Forestal District) that have
transferred bonus density rights are subsequently withdrawn from the designated sending area
(the designated Agricultural and Forestal District), the total number of density rights
transferred, including bonus density rights, shall be counted against any future subdivision
ability of the property.
3.
When TDR density rights are applied to a receiving property, the density right to housing type
conversion rate shall be outlined in the table below. Such density conversions shall be
demonstrated on the Master Development Plan for the receiving property.
Table 3
TDR Denisty Right Conversation Rate
Housing Type Conversation Rate
Single Family 1 TDR Density Right =1 Dwelling Unit
Single Family Attached 1 TDR Density Right =1.5 Dwelling Units
(*all fractions must be rounded down)
Multifamily 1 TDR Density Right =1.75 Dwelling Units
(*all fractions must be rounded down)
§165-302.04. TDR Sending Property Development Limitations.
A. Following the transfer of residential development rights, a sending property that has retained part
of their development rights may subsequently accommodate remaining residential dwelling units on
the sending property consistent with the requirements of the RA (Rural Areas) District and all
requirements of the Frederick County Code. A sending property that has retained part of its
CHAPTER 165 - ZONING
8
development rights may also transfer the remainder of the eligible rights through the transfer of
development rights program.
B. On sending properties with environmental features as outlined in § 165-302.03A, the development
rights shall be severed from the areas outside of the specified environmental features. If
development rights are retained on the sending property, future subdivision of the parcel cannot
occur on the areas where development rights have already been severed.
C. The limitations in this section shall be included in a deed covenant applicable to the sending
property.
§165-302.05. Sending Property Certification.
A. The Director of Planning and Development or his designee shall be responsible for determining that
a proposed sending property meets the qualifications of §165-302.01. The Director of Planning and
Development or his designee shall render a determination or denial under this subsection within
sixty (60) days of the date of submittal of a completed sending property determination application.
If the determination is that a property meets the qualifications of §165-302.01, the Director of
Planning and Development or his designee shall issue the determination in the form of a LETTER OF
INTENT to issue a TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE. A LETTER OF INTENT issued
under this subsection shall be valid until the development rights are severed and extinguished
through the transfer process, or unless applicable zoning changes are approved that would affect
the sending property, or unless the property is developed.
B. Determinations of sending property qualifications under subsection A of this section are appealable
to the Board of Supervisors by filing a notice of appeal with the Director of Planning and
Development or his designee within thirty (30) days of the date of the determination.
C. The Director of Planning and Development shall be responsible for maintaining permanent records
of action taken pursuant to the transfer of development rights program under this Article III of
Chapter 165, including records of letters of intent issued, certificates issued, deed restrictions and
covenants known to be recorded, and development rights retired, otherwise extinguished, or
transferred to specific properties and/or transferees.
D. Responsibility for preparing a completed application for a determination that a proposed sending
property meets the qualifications of §165-302.01 rests exclusively with the applicant/property
owner. An application for a transfer of development rights to issue a transfer of development rights
LETTER OF INTENT shall contain:
1) A certificate of title for the sending property prepared by an attorney admitted to
practice law in the Commonwealth of Virginia;
CHAPTER 165 - ZONING
9
2) Five copies of a valid recorded plat or survey, of the proposed sending parcel and a legal
description of the sending property prepared by a land surveyor licensed in the
Commonwealth of Virginia;
3) A plan showing the existing and proposed dwelling units and any areas already subject
to a conservation easement or other similar encumbrance;
4) A completed density calculation worksheet for estimating the number of available
development rights;
5) The application fee as set forth in the Development Review Fees adopted by the Board
of Supervisors; and
6) Such additional information required by the Director of Planning and Development or
his designee as necessary to determine the number of development rights that qualify
for transfer.
E. A transfer of development rights LETTER OF INTENT issued by the Director of Planning and
Development or his designee shall state the following information:
1) The name of the transferor;
2) The name of the transferee , if then known;
3) A legal description of the sending property on which the calculation of development rights is
based;
4) A statement of the size, in acres, of the sending property on which the calculation of
development rights is based;
5) A statement of the number of development rights, stated in terms of number of dwelling units,
eligible for transfer;
6) If only a portion of the total development rights are being transferred from the sending
property, a statement of the number of remaining development rights, stated in terms of
number of dwelling units, remaining on the sending property;
7) The date of issuance;
8) The signature of the Director of Planning and Development or his designee; and
9) A serial number assigned by the Director of Planning and Development or his designee.
F. No transfer of development rights under this ordinance shall be recognized by Frederick County as
valid unless the instrument of transfer contains the transfer of development rights certificate issued
under this section.
§165-302.06. Instruments of Transfer.
A. An instrument of transfer of development rights shall be reviewed and approved as to the form and
legal sufficiency by the County Attorney and, upon such approval, the County Attorney shall notify
the transferor or his or her agent, who shall record the instrument with the Clerk of the Circuit Court
and shall provide a copy to the Commissioner of the Revenue. An instrument of transfer of
CHAPTER 165 - ZONING
10
development rights shall conform to the requirements of this section and shall contain the
following:
1) The names of the transferor and the transferee;
2) A legal description and plat of the sending property prepared by a land surveyor licensed in the
Commonwealth of Virginia;
3) The transfer of development rights certificate described in §165-302.03F;
4) A covenant indicating the number of development rights remaining on the sending property and
stating that the sending property may not be subdivided to or developed to a greater density
than permitted by the remaining development rights;
5) A covenant that the transferor grants and assigns to the transferee and the transferee’s heirs,
assigns, and successors a specific number of development rights from the sending property to a
receiving property and/or a transferee;
6) A covenant by which the transferor acknowledges that he has no further use or right of use with
respect to the development rights being transferred; and
7) A covenant that all provisions of the instrument of transfer of development rights shall run with
and bind the sending property and may be enforced by Frederick County.
B. An instrument of transfer of development rights shall be recorded prior to release of development
permits, including building permits, for the receiving property.
Part 303 – Transfer Process and Development Procedures.
§165-303.01. Transfer Process.
Development rights shall be transferred using the following process:
A. Following approval of the sending property determination application and issuance of the LETTER
OF INTENT as described in §165-302.05, the Director of Planning and Development or his designee
shall issue the TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE, agreeing to a transfer of
development rights in exchange for the proposed sending property deed covenant to which
Frederick County is a party. If a sending property with a TRANSFER OF DEVELOPMENT RIGHTS
CERTIFICATE changes ownership, the certificate may be transferred to the new owner if requested
in writing to the Department of Planning and Development by the person(s) that owned the
property when the certificate was issued, provided that the documents evidencing the transfer of
ownership are also provided to the Department of Planning and Development.
B. In applying for receiving property or receiving person approval, the applicant shall provide the
Department of Planning and Development with one of the following:
1) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued in the name of the applicant;
CHAPTER 165 - ZONING
11
2) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued in the name of another person or
persons and a signed option to purchase those TDR sending property development rights; or
3) A TRANSFER OF DEVELOPMENT RIGHTS CERTIFICATE issued in the name of the applicant or
another person(s) and a copy of a signed option to purchase those TDR sending property
development rights.
C. The receiving property applicant and/or transferee shall deliver the documentation outlined in §
165-303.01B for the number of TDR development rights being severed or transferred and the TDR
extinguishment document to the County.
D. Development rights from a sending property shall be considered transferred to a receiving property
and/or a transferee and extinguished when the extinguishment document for the sending property
has been recorded.
§165-303.02. Development Approval Procedures.
A. A request to utilize transferred development rights on an eligible receiving property must be in the
form of a Master Development Plan and a Subdivision Design Plan submitted to the Department of
Planning and Development in accordance with the Zoning and Subdivision regulations contained in
Chapters 165 and 144 of the County Code.
B. All subdivisions for receiving properties zoned RA (Rural Areas) utilizing development rights shall be
subject to the same requirements as property zoned RP (Residential Performance) and shall not
qualify for the standards specified in §144-31 of the Frederick County Code.
C. A final recorded plat for a subdivision using transferred development rights shall contain a
statement setting forth the development proposed, the zoning classification of the property, the
number of development rights used, and a notation of the recordation of the conveyance required
by §165-302.06.
Adopted RP Density Table
ARTICLE IV
AGRICULTURAL AND RESIDENTIAL DISTRICTS
Part 402 – RP Residential Performance District
§ 165-402.05 Gross density.
A gross density shall be established for each proposed development, including all land contained within
a single master development plan, according to the characteristics of the land, the capacity of public
facilities and roads and the nature of surrounding uses. Because of these characteristics, some
developments may not be allowed to employ the maximum density allowed by these regulations. The
following density requirements shall apply to all parcels as they exist at the time of the adoption of this
section:
A. Subsequent divisions of land shall not increase the allowed density on parcels of land.
B. In no case shall the gross density and maximum percentage of multifamily housing of any
development within an approved master development plan exceed the densities and percentages
set forth in the following table:
Density by Land Use Density (Units/Acre) Maximum Percentage of
Multifamily Housing
Multifamily Residential Buildings and Age
Restricted Multifamily (excluding garden
apartments)
20 Units/Acre 100%
Garden Apartments 10 Units/Acre 100%
Townhouse (single family attached) 10 Units/Acre N/A
Density by Parcel Size
(for all other housing types and
development with mixed housing types)
Density (Units/Acre) Maximum Percentage of
Multifamily Housing
0-10 acres 10 Units/Acre 100%
10.1-25 acres 6 Units/Acre 100%
25.1 -50 acres 6 Units/Acre 60% 75%
50.1 + acres 6 Units/Acre 50%
C. Within developments utilizing Transferable Development Rights, the maximum gross residential
density for the development shall be determined in §165-302.03H.
Development Impact Model
On October 12, 2005, the Frederick County Board of Supervisors directed staff to use the
Development Impact Model (DIM) to project the capital fiscal impacts that would be associated
with any rezoning petitions containing residential development, replacing the existing Capital
Facilities Fiscal Impact Model. The DIM was created by an economic consultant who evaluated
and analyzed development within the County in an effort to assist the County in planning for
future capital facility requirements. Critical inputs to the DIM are to be reviewed and updated
annually to assure that the fiscal projections accurately reflect County capital expenditures.
The Board of Supervisors authorized use of the annual model update on June 12, 2013.
The DIM projects that, on average, residential development has a negative fiscal impact on the
County’s capital expenditures. As such, all rezoning petitions with a residential component
submitted after July 1, 2013 will be expected to demonstrate how the proposal will mitigate the
following projected capital facility impacts:
Single Family Dwelling Unit = $ 19,600
Town Home Dwelling Unit = $ 13,062
Apartment Dwelling Unit = $ 11,339
The following is a breakdown of the projected impacts per dwelling unit for each capital facility.
Capital facility Single Family Town home Apartment
Fire And Rescue $564 $419 $425
General Government $43 $33 $33
Public Safety $0 $0 $0
Library $496 $379 $379
Parks and Recreation $1766 $1,350 $1,350
School Construction $16,731 $10,881 $9,152
Total $19,600 $13,062 $11,339
The projected capital expenditures depicted above do not include a credit for future real estate
taxes. A “read-only” copy of the Development Impact Model is available on the public
workstation within the Planning and Development’s office. A user manual is also available.
06/12/2013
ATTACHMENT 1
RURAL AREAS REPORT
& RECOMMENDATION
A Report from the Rural Areas Subcommittee
Recommended by the Subcommittee on February 19, 2009
Recommended by the Planning Commission on April 1, 2009
Adopted by the Board of Supervisors on April 22, 2009
February 2009, Final Version
Following six months of research, presentations, discussions, and evaluations, the Rural
Areas Subcommittee offered their Preliminary Thoughts regarding the County’s rural areas.
The subcommittee’s Preliminary Thoughts were presented to the community during a public
meeting held on February 5, 2009. After taking into consideration the comments received
during this public session, the Subcommittee finalized their research, and on February 19,
2009, forwarded a recommendation to the Board of Supervisors. This recommendation is
included in the Rural Areas Report & Recommendation.
Development pressures in the rural areas, which intensified over the past decade, are
significantly impacting our community’s rural character. The residential development that is
resulting from this pressure impacts the County in various ways. It increases demands for
County services. It significantly impacts the vitality of the agricultural economy as farmland
is converted from active agriculture to residential use. Additionally, the development
pressures and resulting residential development impacts the rural character of the
community, detracting from viewsheds and the rural landscape.
FREDERICK COUNTY
BOARD OF
SUPERVISORS’
RURAL AREAS
SUBCOMMITTEE
February 2009, Final Version Rural Areas Report & Recommendation
Frederick County Board of Supervisors’ Rural Areas Subcommittee Page 4 of 30
o Prohibit the use of Discharge Health Systems, and require Board of Supervisors’ approval
for Pump-and-Haul permits.
o Support Operation and Maintenance Requirements for alternative health systems.
• Enable the use of Community Health Systems within defined Rural Community Centers.
• Implement enhancements to the existing Rural Preservation Lot subdivision requirements.
o Maintain a minimum lot size of two acres.
o Increase the preservation lot (cluster set-aside lot) from 40 percent of the parent tract to a
minimum 60 percent of the parent tract.
• Establish a Transfer of Development Rights (TDR) program.
o Consider identifying ‘sending’ areas based on rich agricultural soils and ridgeline viewsheds
In identifying ‘sending’ areas, recognize that a property’s location, soil, and terrain
heavily influence its capacity to be developed and thus its development value.
• TDR ‘sending’ areas should be designated in an effort to discourage
development.
o Consider using ‘receiving’ areas where residential development is desired.
Within the UDA on residentially planned areas that are zoned RA.
Within Urban Centers and Neighborhood Villages.
In Rural Community Centers with adopted boundaries.
o Structure the TDR program so that it is economically advantageous for the development
community to purchase development rights from key agricultural areas of the County.
o Structure the TDR program so that it is economically advantageous for landowners to sell
their development rights as opposed to selling their land for development.
• Pursue state enabling legislation that would allow the County to implement Impact Fees for
new construction.
o Seek, support, and participate in collective lobbying efforts to secure impact fee-enabling
legislation to adequately address the impacts new construction places on the county.
• Strengthen opportunities that support and promote agriculture.
o Promote forum and network opportunities that would further produce marketing and
agriculture economy support.
On February 19, 2009, the Subcommittee forwarded these recommendations to the Board of Supervisors for
their consideration. The Board of Supervisors adopted this report as a component of the Comprehensive
Policy Plan on April 22, 2009.
ATTACHMENT 2
Frederick County, Virginia 2011 Transfer of Development Rights (TDR) Factsheet
1
1.The Basics of a TDR Program.
A TDR program is a mechanism for preserving farmland, open space,
and natural resources. The development potential of a property (as
determined by the zoning and the local real estate market) can
threaten the natural resources that a community wishes to protect.
This Program allows rural land owners to sever the available
development rights from their property and sell them on the open
market. Thus, rural landowners are able to realize economic return
through the sale of their transferable development rights to private
individuals while still being able to own and utilize their land.
Developers who buy these development rights are able to use those
rights to build in other areas that are more practical for residential
growth in Frederick County.
2.Frederick County’s TDR Program is voluntary.
TDR Programs are based on free-market principles and prices that
would motivate landowner and developer participation. Frederick
County’s TDR Program is a voluntary and market-driven approach to
give rural land owners the option to preserve rural land.
3.The Price of a TDR Density Right.
Through the TDR Program, the severed development right(s) are
turned into a tradable commodity that can be bought and sold – just
as land can be bought and sold. Just as with other commodity
markets, the TDR market, is driven by supply and demand. Rural
landowners in the sending areas create the supply of development
rights and developers create the demand. The County does not play a
role in determining the value of a TDR, it is solely determined by the
price set by the sellers and buyers. It is also important to remember
that development demand drives the TDR market. Therefore, the TDR
market directly reflects the changes in the local real estate markets.
The TDR program offers the rural landowner another option in
capturing the value in the land holding, without the expense of
extensive land surveying, soil work to identify necessary health
systems, and engineering and road construction. Best of all, the land
remains in productive farm use, and retains its rural character. And by
purchasing the transferrable development rights, the developer is able
to avoid a lengthy and costly rezoning process, as well as the impact
mitigations that are associated with securing the rezoning.
4.Frederick County’s TDR Program is different than other localities in
the nation that have adopted TDR Programs.
Some TDR Programs in other localities were established in connection
with the significant downzoning of farmland. These TDR Programs
were then implemented to help compensate landowners for the
downzoning by allowing them to transfer development rights at a
higher rate than the allowance under the new zoning. Frederick
County’s TDR Program was not adopted in response to a downzoning,
it was adopted to provide rural landowners with another option to
realize the value of their property without having to sell or subdivide
their land. Frederick County’s base density in the Rural Areas (RA)
Zoning District (one dwelling per five acres) remains the same today as
it was before the adoption of the TDR Program.
5.The TDR Program is in conformance with the Comprehensive Plan.
The TDR program was established as part of a larger strategy to
preserve land and redirect growth from the rural areas. Sending Areas
are designated to protect the most valuable rural land, unique natural
and historic resources, or other resources identified in the Plan’s
protection goals. TDRs will not add new residences where they will
contribute to the fragmentation of the best agricultural lands or
conflict with existing farming operations.
Frederick County, Virginia 2011 Transfer of Development Rights (TDR) Factsheet
2
6.All about Sending Properties and where they are located.
Sending properties have been identified as parcels of land that are
located in the County’s Rural Areas (RA) Zoning District, outside of the
adopted Urban Development Area (UDA) and the Sewer and Water
Service Area (SWSA – areas where public water and sewer are
provided). These properties are generally used for agricultural
purposes and are comprehensively planned to stay rural and/or
agricultural in nature. The sending property has to be twenty acres in
size or greater and subdividable in accordance with the County’s
Subdivision Ordinance (this includes state road access/frontage
requirements, right-of-way widths, etc.). The requirement that
properties be “subdividable” was included to ensure that the TDR
Program would not be utilized to sever development rights from
properties that were not eligible for subdivision to begin with.
Frederick County’s TDR Ordinance specifies three different sending
areas. The properties located in Sending Area #1 are within one of
Frederick County’s six adopted Agricultural and Forestal Districts as
allowed by the Code of Virginia. Properties within Sending Area #2 are
located within the area of the County deemed to have prime
agricultural soils and karst topography and thus are desired for
preservation for agricultural purposes as well as groundwater
recharge areas. Sending Area #3 encompasses the remainder of the
Sending Area not included in Areas #1 and #2 and is outside of the
SWSA and UDA.
7.Determining development rights on a Sending Property.
Calculations for a sending property start by determining the base
density of the property (1 dwelling per 5 acres). The total
development rights the property would be entitled to is determined
and then subtractions are made for existing dwellings, lands within
environmental features (floodplains, ponds/lakes, steep slopes) and
lands within easements (conservation, utility, roads, etc.). Once the
number of transferable development rights has been determined,
ratio of development rights can be calculated. Properties located
within Sending Areas #1 or #2 are eligible to be transferred at a ratio
of 1:2 and 1:1.5 respectively.
Sending Area #3
Sending Area #2
Sending Area #1
Frederick County, Virginia 2011 Transfer of Development Rights (TDR) Factsheet
3
8.Severed transferable development cannot be “reattached” to a
Sending Property.
Once a property owner severs the rights from the sending property,
the restriction remains in place indefinitely. What will occur most
frequently is that a property owner will not sever development rights
until the property owner has negotiated with someone wishing to buy
the development rights.
9.All about Receiving Properties.
Receiving properties have been identified as parcels located within
Frederick County’s adopted Urban Development Area (UDA) or within
a designated and defined Rural Community Center. The properties
must be designated for future residential land use, served by public
water and sewer, served by state roads, and must be zoned one of
three specific zoning districts that allow for residential land uses. To
be utilized as a receiving property, a site must also be outside of the
designated Airport Support Area and cannot impact historical
resources or environmental resources. Receiving properties are
permitted to receive transferable development rights from one or
more sending properties up to the maximum density established by
the TDR Ordinance.
10.Applying TDR’s in the Receiving Areas (Urban Development Area).
Once transferable development rights have been severed from a
sending property they can be banked or immediately applied to a
receiving property. TDR’s would be applied to an eligible receiving
property through the subdivision or development plan process; this is
the process the County uses to review proposed developments to
ensure that needed infrastructure and services are provided. A
rezoning would not be required.
After consulting with County staff to determine how many TDR’s may
be used on a particular parcel, the property owner will then file a
Master Development Plan (MDP), followed by a Subdivision Design
Plan for review and approval. TDR developments will be allowed only
if a MDP and Subdivision Design Plan are approved for the
development. These plans will state how many TDR’s are being used
for the development. The applicant will submit to the county,
certificates equaling the number of TDR units planned for the
development. Review of the development will be based on existing
County ordinance regulations.
Development occurs
where and how it
is planned.
Land is protected,
farming operation
stays intact.
Farmer sells TDRs
Developer buys and uses
TDR’s to develop in the UDA
on an appropriate site.
TDR STEPS:
Farmer to Developer
Farmer severs transferable
Development rights (TDRs)
outcome outcome
Frederick County, Virginia 2011 Transfer of Development Rights (TDR) Factsheet
4
Transfer of Development Rights (TDR) Scenarios
11.Sending Property Example:
How would this example sending property be taxed before and
after TDR’s?
Sending Property Before TDR’s
Property Size 115.25 acres
Zoning RA (Rural Areas)
Environmental Features 33.71 acres
Developable Area 81.54 acres
Retained Dwelling Units 2
Possible TDR’s to Sell 14
Fair Market Value $403,000
Land Use Value $28,703
Taxes @ 54.5
cents/Hundred
$156.43/yr
If the property owner sells all or some of their TDR development
rights and the property remains enrolled in the land use taxation
program the value of the property does not change and the tax
obligation of the property owner remains the same.
However, now the severed development rights which were once
covered by the land use taxation program can now be taxed at
their fair market value – which means they are now bringing in
revenue (fair market value of the TDR x the applicable tax rate).
*Roll back taxes would not apply to the severance of TDR
development rights because the use of the sending property is not
intensifying.
4
Frederick County, Virginia 2011 Transfer of Development Rights (TDR) Factsheet
5
12. Receiving Property Example:
How would this example receiving property be taxed
before and after TDR’s?
Developer has a RA zoned property inside the UDA and wants to
develop to a RP density. Developer has purchased TDR
development rights which means the rezoning process is not
necessary to obtain higher density.
Receiving Property Before TDR’s
(RA Zoned Property within the UDA)
Property Size 3.46 acres
Zoning RA (Rural Areas)
Assessed RA Land Value (RA) $ 146,600 (taxes $798.97)
10 Banked TDR Value* $150,000 (taxes $817.50)
Annual Tax Burden $1,616
*Banked TDR’s are development rights that have been severed from a sending property
and are being held by an individual. These rights have not yet been applied to a receiving
property and are therefore “banked” or “held” development rights. Banked TDR’s are
taxed at their fair market value.
*All TDR values are estimates, actual values will be determined once transfers occur.
Developer has purchased 10 TDR development rights from a land
owner and only needs to complete the master plan/subdivision
plan process to apply the rights to his property. This will give the
developer higher density and also changes the taxes on the
property because attaching these TDRs to the RA land gives it the
equivalent of being RP land.
Receiving Property After TDR’s
10 Banked TDR’s applied to Receiving Property
Assessed RA Land Value (RP) $ 500,000 (taxes $2,725)
Extinguished TDR Value 0
New Annual Tax Burden $2,725
ATTACHMENT 3
Chapter 165 – Zoning
ARTICLE III
Transfer of Development Rights (TDR) Program
§165‐302.02. Receiving Properties.
A. Except as provided in subsections B and C of this section, in order to be eligible as a receiving
property, a property must be:
1) Located in one of the following zoning districts:
a. RP (Residential Performance) District;
b. R4 (Residential Planned Community) District; or
c. RA (Rural Areas) District; and
2) Designated on the Receiving Areas Map;
3) Served by public water and public sewer;
4) Served by state maintained roads or have the ability to utilize private roads in the RP District as
permitted by Chapter 165 or Chapter 144.
5) Located within the Urban Development Area (UDA) or a designated and defined Rural
Community Center as identified in the Comprehensive Policy Plan; and
6) Identified in the Frederick County Comprehensive Policy Plan for residential land uses.
B. A property is not eligible as a receiving property if the transfer of development rights to the
property would adversely impact regionally or locally significant historical resources or naturally
sensitive areas as specified in the Comprehensive Policy Plan.
C. A property is not eligible as a receiving property if the property is located within the airport support
area as identified by the Comprehensive Policy Plan.
A. If a receiving property has any outstanding code violations and/or unpaid taxes, the owner shall
resolve these violations, including any required abatement, restoration, or payment of penalties or
taxes, before the property may be qualified as a receiving property in the transfer of development
rights program.
E. A receiving property may accept development rights from one or more sending properties, up to a
maximum density specified in Table 1 and Table 2 in §165‐302.03.
§165‐303.02. Development Approval Procedures.
A. A request to utilize transferred development rights on an eligible receiving property must be in the
form of a Master Development Plan and a Subdivision Design Plan submitted to the Department of
Planning and Development in accordance with the Zoning and Subdivision regulations contained in
Chapters 165 and 144 of the County Code.
B. All subdivisions for receiving properties zoned RA (Rural Areas) utilizing development rights shall be
subject to the same requirements as property zoned RP (Residential Performance) and shall not
qualify for the standards specified in §144‐31 of the Frederick County Code.
C. A final recorded plat for a subdivision using transferred development rights shall contain a
statement setting forth the development proposed, the zoning classification of the property, the
number of development rights used, and a notation of the recordation of the conveyance required
by §165‐302.06.
c
REZONING APPLICATION #05-13
GOVERNORS HILL
Staff Report for the Planning Commission
Prepared: September 30, 2013
Staff Contact: John A. Bishop, AICP, Deputy Director-Transportation
Reviewed Action
Planning Commission: 10/16/13 Pending
Board of Supervisors: 11/13/13 Pending
PROPOSAL: To revise proffers associated with Rezoning #10-08. This revision relates to the
“Transportation Enhancements” and “Environment” sections of the proffers.
LOCATION: The properties are 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.
EXECUTIVE SUMMARY & STAFF CONCLUSION FOR THE 10/16/13 PLANNING
COMMISSION MEETING:
The applicant is seeking approval of a minor proffer revision. The proposed proffer revision removes
items that have already been dealt with or are proposed to be dealt with by others and changes the date
of performance provision for road improvements from 2015 to 2025. However, development triggers
for road improvements remain in place, so if economic conditions improved and the development were
able to move forward soon, the road improvements would also move forward. Executed proffers are
provided along with a redline version to make clear where changes have been made. The portionof
the proffers related to the recordation of the avigation easement have been removed in addition to the
transportation items noted above. The deadline for installation of a left turn lane and median crossover
to access Raven Pointe remains in place unchanged.
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 #05-13 – Governors Hill
September 30, 2013
Page 2
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: 10/16/13 Pending
Board of Supervisors: 11/13/13 Pending
PROPOSAL: To revise proffers associated with Rezoning #10-08. This revision relates to the
“Transportation Enhancements” and “Environment” sections of the proffers.
LOCATION: The properties are located approximately one mile east of Interstate 81 on the south side of
Millwood Pike (Route 50 East), across from Sulphur Springs Road (Route 655), and The Ravens
subdivision.
MAGISTERIAL DISTRICT: Shawnee
PROPERTY ID NUMBERS: 64-A-82, 64-A-83, 64-A-83A, 64-A-86, 64-A-87, 64-A-87A
PROPERTY ZONING: R4 (Residential Planned Community) District
PRESENT USE: Undeveloped/Vacant
ADJOINING PROPERTY ZONING & PRESENT USE:
North: RP (Residential Performance) Use: Single Family Residential
South: RA (Rural Areas) Use: Regional Airport
East: M1 (Light Industrial) Use: Industrial and Residential
MH1 (Mobile Home Community)
West: RA (Rural Areas) Use: Regional Airport and Office
B2 (Business General)
Rezoning #05-13 – Governors Hill
September 30, 2013
Page 3
REVIEW EVALUATIONS:
Virginia Dept. of Transportation: Please see attached e-mail from Lloyd Ingram, VDOT to Ron
Mislowsky dated August 22, 2013.
County Attorney: Please see attached e-mail from Rod Williams, County Attorney to Ron Mislowsky
dated August 15, 2013.
Planning & Zoning:
1) Site History
The original Frederick County zoning map (U.S.G.S. Winchester Quadrangle) identifies the subject
parcels 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 properties and all other A-1 and
A-2 zoned land to the RA District. On October 12, 2005 the Board of Supervisors approved
Rezoning #11-05 which rezoned parcels 64-A-82, 64-A-83, 64-A-83A, 64-A-86, 64-A-87, 64-A-
87A to the R4 District with proffers. On January 28, 2009, rezoning number #10-08 to R4 with
proffers approved by the Board of Supervisors. The January 28, 2009 updated transportation and
land use layouts. Most significant of the transportation changes was the severing of a planned
connection to Route 50 at the location of Sulphur Springs Road and the focusing of traffic flow
to Route 50 at Inverlee Drive.
2) Comprehensive Policy Plan
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.
Land Use
A portion of the site is located within the Urban Development Area (UDA); specifically the
residential portion of the development is within the UDA. The comprehensive plan envisions the
area comprised by the subject parcels as developing with business/office land use. The existing and
proposed R4 zoning is generally consistent with this plan as it relates to this area.
The subject parcels are also located within the boundaries of the Airport Support Area that
surrounds the Winchester Regional Airport. Business and industrial uses should be the primary
uses in the airport support area.
Rezoning #05-13 – Governors Hill
September 30, 2013
Page 4
3) Proffer Statement
The proposed proffer revision removes items that have already been dealt with or are proposed
to be dealt with by others and changes the date of performance provision for road improvements
from 2015 to 2025. However, development triggers for road improvements remain in place, so
if economic conditions improved and the development were able to move forward soon, the
road improvements would also move forward.
STAFF CONCLUSIONS FOR THE 10/16/13 PLANNING COMMISSION MEETING:
The applicant is seeking approval of a minor proffer revision. The proposed proffer revision removes
items that have already been dealt with or are proposed to be dealt with by others and changes the date
of performance provision for road improvements from 2015 to 2025. However, development triggers
for road improvements remain in place, so if economic conditions improved and the development were
able to move forward soon, the road improvements would also move forward. Executed proffers are
provided as well as a redline version of the proffer update. The portion of the proffers related to the
recordation of the avigation easement have been removed in addition to the transportation items noted
above. The deadline for installation of a left turn lane and median crossover to access Raven Pointe
remains in place unchanged.
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.
WINCHESTERREGIONAL AIRPORTSubdivisionAIRPORTBUSINESS CENTERSubdivision
J I C LTD.Subdivision
WESTVIEWBUSINESS CENTRESubdivision
PRESTONBUSINESS PARKSubdivision
PEGASUS BUSINESSCENTERSubdivision
GOVERNORSHILLSubdivision
PRINCE FREDERICKOFFICE PARTSubdivision
RAVEN WINGSubdivision
PROSPECTHILLSSubdivision
GARBERBUSINESS CENTERSubdivision
MILLERHEIGHTSSubdivisionDELCO PLAZASubdivision
ROSENBERGERSubdivision
RAVEN POINTESubdivisionCOLLEGE PARKSubdivision
OAKDALECROSSINGSubdivision
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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: August 27, 2013Staff: jbishop
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REZ # 05 - 13Governor's HillPINs:64 - A - 82, 64 - A - 83, 64 - A - 83A,64 - A - 86, 64 - A - 87, 64 - A - 87ARezoning Proffer Revision
REZ # 05 - 13Governor's HillPINs:64 - A - 82, 64 - A - 83, 64 - A - 83A,64 - A - 86, 64 - A - 87, 64 - A - 87ARezoning Proffer Revision
0 1,100 2,200550 Feet
A
Page 1 of 16
PROFFER STATEMENT
REZONING: RZ. #__ _:#10-08: R4 and RA to R4
PROPERTY: 278.0 Acres +/-:
Tax Map & Parcels 64-A-83, 83A, 84, 85, 86, and 87 (the
“Property”)
RECORD OWNER: Carpers Valley Development, LLC and Governors Hill
LLC
APPLICANT: Carpers Valley Development, LLC and Governors Hill
LLC
PROJECT NAME: Governors Hill
ORIGINAL DATE
OF PROFFERS: March 24, 2008
REVISION DATE: September 2, 2008; October 31, 2008; December 8, 2008;
January 9, 2009; May 1, 2013; June 17, 2013, July 23,
2013; August 15, 2013; September 6, 2013; September 26,
2013
The undersigned owners hereby proffer that the use and development of the
subject property (“Property”), as described above, shall be in conformance with the
following conditions, which shall supersede all other proffers that may have been made
prior hereto. In the event that the above referenced rezoning is not granted as applied for
by the Applicant (“Applicant”), these proffers shall be deemed withdrawn and shall be
null and void. Further, these proffers are contingent upon final rezoning of the Property
with “Final Rezoning” defined as that rezoning that is in effect on the day upon which the
Frederick County Board of County Supervisors (the “Board”) grants the rezoning.
The headings of the proffers set forth below have been prepared for convenience
or reference only and shall not control or affect the meaning or be taken as an
interpretation of any provision of the proffers. The improvements proffered herein shall
be provided at the time of development of that portion of the Property adjacent to or
including the improvement or other proffered requirement, unless otherwise specified
herein. The term “Applicant” as referenced herein shall include within its meaning all
future owners, assigns, and successors in interest. When used in these proffers, the
“Master Development Plan” shall refer to the plan entitled “Master Development Plan,
Governors Hill” prepared by Patton Harris Rust & Associates, (the “MDP”) dated March
2008 revised January 9, 2009.
1. LAND USE
1.1 The project shall be designed to establish interconnected mixed-use
residential and commercial/employment Land Bays in general
conformance with the MDP, and as is specifically set forth in these
Formatted: Line spacing: Exactly 13 pt
Page 2 of 16
proffers subject to minor modifications as necessary upon final
engineering including but not limited to intersection alignments.
1.2 All development, including street landscaping, shall be accomplished in
general conformance with the “Governors Hill, Design and
Development Standards”, prepared by PHR&A attached hereto and
incorporated herein by reference (the “Design and Development
Standards”).
1.3 Residential uses shall be prohibited in the area identified as Land Bay 2
on the MDP. Furthermore, Land Bay 2 shall be restricted to those uses
permitted in the General Business (B-2) zoning district as specified in
the Frederick County Code Article X, §165-82B(1).
1.4 Except as modified herein, areas of residential development on the
Property shall be limited to Land Bay 1 and shall be developed in
conformance with the regulations of the Residential Planned Community
(“R4”) zoning district, including permissible housing types set forth in
the Frederick County Code Article VII, §165-67 through §165-72, as
cross-referenced to Article VI, §165-58, through §165-66. Unit types
and lot layouts within residential Land Bays may comprise any of the
permitted unit types as set forth in the Design and Development
Standards, and authorized for the R4 district, and these Proffers.
1.5 Residential development on the Property shall not exceed 550 dwelling
units, with a mix of housing types permitted in the R4 district. Multi-
family units, as defined by the Design and Development Standards, shall
not exceed 50% of the total number of dwelling units developed in the
project. No residential structures shall be closer than 2000 feet from the
centerline of the existing Winchester Airport runway.
1.6 Prior to the Property exceeding 1,285,000 square feet of commercial
building floor area, the Applicant shall submit to the County a revised
Traffic Impact Analysis (TIA) for the Property. The total permitted
commercial building floor area may increase provided that the Applicant
completes a revised traffic impact analysis which identifies the impacts
of trips for commercial development in excess of 45,815 Average Daily
Trips (ADT) and mitigation, if necessary for said impacts is provided by
the Applicant in a form that is acceptable to the County and VDOT.
2. CONSTRUCTION OF A UNIFIED DEVELOPMENT
2.1 The Property shall be developed as one single and unified development
in accordance with applicable ordinances and regulations for the R4
zoning district, the MDP as approved by the Board, and this Proffer
Statement.
Page 3 of 16
3. ACCESS TO ARMORY PARCEL
3.1 The Applicant shall designhas designed and constructconstructed a
two lane public roadway, identified on the MDP as Pendleton Drive,
from Arbor Court to the entrance of the Armory Site (TM 64-A-82) to
coincide with the completion of the Armory.). At such time that
Tazewell Road is constructed adjacent to Pendleton Drive as depicted on
the MDP, the Applicant shall extend Pendleton Drive to connect with
Tazewell Road.
4. PHASING OF RESIDENTIAL DEVELOPMENT
4.1 Building permits for Land Bay 1 of the Property shall be issued on the
following phasing schedule:
Year 1 (Months 1-12): 140 building permits
Year 2 (Months 13-24): 140 building permits
Year 3 (Months 25-36): 140 building permits
Year 4 (Months 37-48): 130 building permits
The above identified phasing schedule is taken from the Date of Final
Rezoning (DFR). Any building permits not issued within any given year
may be carried over to the following year, however the Applicant shall not
make application for more than 200 residential building permits in any
given year.
4.2 Commercial and employment uses may be constructed at any time.
4.3 Improvements including a 3,000 square foot community center, 3,500
square feet of neighborhood swimming pools, and a dog park shall be
constructed in conjunction with residential development in Land Bay 1
and the land therefor shall be dedicated upon completion of the
improvements to the Property Owners Association. The location thereof
shall be depicted on final subdivision plans for such residential
development. These recreational amenities shall serve to meet the
requirement of 1 recreation unit per 30 dwellings. These improvements
shall be completed prior to the issuance of the 281st residential building
permit.
5. ARCHITECTURE, SIGNAGE, AND LANDSCAPING:
5.1 All buildings on the Property shall be constructed using compatible
architectural styles. The Applicant shall establish one or more
Architectural Review Boards through the required Property Owner
Association to be created to enforce and administer a unified development
plan in general conformity with the Design and Development Standards.
Page 4 of 16
5.2 All signage within the Property shall be in substantial conformity with a
comprehensive sign plan that meets the requirements of the Zoning
Ordinance for signage, which shall be submitted in conjunction with the
first final site or subdivision plan for the Property.
6. PEDESTRIAN TRAIL SYSTEM AND RECREATION AREAS
6.1 The Applicant shall design and build a public pedestrian-bicycle trail
system to Virginia Department of Transportation standards that links
residential and commercial areas within the development. Said trails shall
be in the locations generally depicted on the MDP. To the extent that such
trails are not depicted on the MDP at the time of Final Rezoning, such
trails shall be connected with or linked to the internal street and sidewalk
network. Sidewalks shall be constructed on public streets to VDOT
standards, and a minimum of four-foot sidewalks shall be constructed on
private streets. All combined pedestrian/bicycling trails shall be 10 feet
wide, and shall have an asphalt surface.
7. FIRE & RESCUE:
7.1 The Applicant shall contribute to the Board the sum of $422 per dwelling
unit for fire and rescue purposes, payable upon the issuance of a building
permit for each dwelling unit.
7.2 Following Final Rezoning, the Master POA to be created in accordance
herewith shall contribute annually, on or before July 1st of each year, the
sum of $100 per constructed residential unit, and $100 per 1000 square
feet of constructed commercial (not including any land in public use), to
the fire and rescue company providing first response service to the
Property. Such contribution shall be monitored and enforced by the
master POA, and the Board may require an accounting of such payments
at such times and upon such conditions as it may determine necessary.
Said monetary contribution shall cease at such time that the fire and rescue
company providing first response service is no longer a volunteer
operation or should the County adopt a fee for service plan to provide fire
and rescue services.
8. SCHOOLS:
8.1 The Applicant shall contribute to the Board the sum of $1,714 per
dwelling unit for educational purposes, payable upon the issuance of a
building permit for each dwelling unit.
Page 5 of 16
9. PARKS & OPEN SPACE:
9.1 The Applicant shall contribute to the Board the sum of $343 per dwelling
unit for recreational purposes, payable upon the issuance of a building
permit for each dwelling unit.
10. LIBRARIES:
10.1 The Applicant shall contribute to the Board the sum of $79 per dwelling
unit for library purposes, payable upon the issuance of a building permit
for each dwelling unit.
11. ADMINISTRATION BUILDING:
11.1 The Applicant shall contribute to the Board the sum of $79 per dwelling
unit upon issuance of a building permit for each dwelling unit to be used
for construction of a general governmental administration building.
12. CREATION OF PROPERTY OWNERS’ ASSOCIATION:
12.1 The Master Property Owners’ Association to be created in accordance
herewith shall be created contemporaneously with the first final site or
subdivision plan submitted for the Property.
12.2 The Applicant shall establish a Master Property Owners’ Association
(hereinafter “Master POA”) for Governors Hill, in its entirety, that shall,
among other things, have responsibility for assuring compliance with
design guidelines and standards, signage requirements, landscape
maintenance, and similar matters. Any homeowners’ or property owners’
associations created for commercial or residential uses individually shall
act as a subset of the Master POA.
12.3 The residential portion of the development shall be made subject to one or
more Property Owners’ Association(s) (hereinafter “Residential POA”)
that shall be responsible for the ownership, maintenance and repair of the
community center, walking trails in Land Bay 1, swimming pools, all
common areas, including any conservation areas that may be established
in accordance herewith not dedicated to the County or others, and
stormwater management facilities not dedicated to public use in Land Bay
1, for each area subject to their jurisdiction, and shall be provided such
other responsibilities, duties, and powers as are customary for such
associations or as may be required for such Residential POA herein.
12.4 In addition to such other duties and responsibilities as may be assigned, a
Residential POA shall have title to and responsibility for the following in
Land Bay 1: (i) all common open space areas not otherwise dedicated to
Page 6 of 16
public use, (ii) common buffer areas located outside of residential lots;
(iii) private streets serving the residents who are members of such
association; (iv) common solid waste disposal and recycling programs,
including curbside pick-up of refuse by a private refuse collection
company, and (v) responsibility for the perpetual maintenance of any
street, perimeter, or road buffer areas, all of which buffer areas shall be
located within easements to be granted to the Residential POA if platted
within residential or other lots, or otherwise granted to the Residential
POA by appropriate instrument.
12.5 The Residential POA shall be so established that it possesses all necessary
powers to set and revise fees and dues in sufficient sums to perform the
responsibilities assigned to it hereunder and under the Declaration to be
recorded creating such Association. In addition, upon any conveyance of
a residential unit from the builder thereof to a home purchaser, there shall
be a fee paid by the home purchaser to the Residential POA in an amount
equal to three times the then-current monthly residential dues applicable to
the unit so conveyed.
12.6 Any commercial portion of the development (with the exception of any
property owned or leased by the United States, or Frederick County) shall
be made subject to one or more Property Owners’ Association(s)
(hereinafter “Commercial POA”). Such Commercial POA(s) shall be
responsible for the ownership, maintenance and repair of all common
areas in Land Bay 2, including any conservation areas that may be
established in accordance herewith not dedicated to the County or others,
and stormwater management facilities (under common (open space)
ownership) not dedicated to public use for each area subject to their
jurisdiction, and shall be provided such other responsibilities, duties, and
powers as are customary for such associations or as may be required for
such Commercial POA herein.
12.7 In addition to such other duties and responsibilities as may be assigned, a
Commercial POA, in Land Bay 2, shall have title to and responsibility for
(i) all common open space areas not otherwise dedicated to public use, (ii)
common buffer areas located outside of commercial lots; (iii)
responsibility for the perpetual maintenance of any street, perimeter, or
road buffer areas, all of which buffer areas shall be located within
easements to be granted to the Commercial POA if platted within
commercial or other lots, or parcels, or otherwise granted to the
Commercial POA by appropriate instrument.
13. WATER & SEWER:
13.1 The Applicant shall be responsible for connecting the Property to public
water and sewer. It shall further be responsible for constructing all
facilities required for such connection at the Property boundary. All water
Page 7 of 16
and sewer infrastructure shall be constructed in accordance with the
requirements of the Frederick County Sanitation Authority.
14. ENVIRONMENT:
14.1 Stormwater management and Best Management Practices (BMP) for the
Property shall be provided in accordance with the Virginia Stormwater
Management Regulations, First Ed. 1999, Chapter 2, Table 2-3.
14.2 The Applicant shall provide notice in all sales literature, in covenants,
conditions and restrictions for any Property Owners’ Associations, of the
adjacency of the Winchester Regional Airport.
14.314.2 The Applicant shall consult with the Executive Director of the
Airport with respect to the granting of a reasonable avigation easement to
provide further protection for Airport operations, and shall dedicate such
easement, as the Airport and the Applicant shall mutually agree. Said
avigation easement shall be dedicated prior to issuance of the 1st building
permit for the Property. The Applicant shall provide noise attenuation
treatment for all residential units.
15. TRANSPORTATION:
15.1 The major roadways to be constructed on the Property shall be constructed
in the locations depicted on the MDP, with reasonable adjustments
permitted for final engineering.
15.2 Excluding 200,000 square feet of office uses which may be developed at
any time utilizing access to the existing completed portion of Coverstone
Drive, the Applicant shall design and construct Coverstone Drive as a full
section with raised medians on a minimum 90’ right-of-way, utilizing the
following phasing schedule:
PHASE 1: Phase 1 shall consist of the full four lane section including a
ten-foot trail from Millwood Pike to the first intersection on
Coverstone Drive as depicted on the MDP from Point A to
Point B. Said roadway shall be constructed to base asphalt
prior to issuance of a certificate of occupanyoccupancy for any
commercial building for the Property and/or prior to issuance
of a building permit for any residential units, excluding model
homes, located in Land Bay 1. Phase 1 improvements shall
consist of all necessary improvements, including signalization
when warranted by VDOT, to create a four way intersection at
the existing intersection of Inverlee Way and Millwood Pike as
shown on the MDP.
Formatted: Indent: Left: 0.5", Hanging: 0.5"
Formatted: Font: Garamond
Page 8 of 16
PHASE 2: Phase 2 shall consist of construction of a two lane section of
Coverstone Drive from Point B to Point C as depicted on the
MDP. Said roadway improvements shall be completed prior to
issuance of a certificate of occupancy for any use that would
cause the Property to exceed 400,000 square feet of
commercial building area.
PHASE 3: Phase 3 shall consist of construction of the remaining two lane
section of Coverstone Drive from Point B to Point C as
depicted on the MDP. Said roadway improvements shall be
completed prior to issuance of a certificate of occupancy for
any use that would cause the Property to exceed 800,000
square feet of commercial building area.
PHASE 4: The Applicant shall design Coverstone Drive Extended as a
four-lane section from Prince Frederick to Relocated Route 522
as depicted from Point D to Point E or for a maximum distance
of 800 feet when the alignment of Relocated 522 has been
determined by VDOT, and the right of way for this segment of
Coverstone Drive has been acquired by VDOT or Frederick
County. In the event that the alignment for relocated Route 522
has not been determined or if the right of way for Coverstone
Drive Extended is not secured by June 30, 2018 then the
Applicant shall pay to the County $20,000 for transportation
improvements within the vicinity of the Property in lieu of
designing said portion of Coverstone Drive. The Applicant
shall further pay to the County $1,000 for each permitted
residential unit as a contribution towards the future
construction of Coverstone Drive Extended, but if the
conditions above have not been met by June 30, 2018 then
these funds may be used for other projects in the vicinity of the
Property that have a rational nexus to the Property. Such funds
shall be paid at the time of building permit issuance for each of
the permitted residential units.
15.3 Notwithstanding any other provisions of these proffers, the Applicant shall
construct Coverstone Drive as a full four-lane section as required in
Proffer 15.2 from Millwood Pike to Prince Frederick Drive prior to
November 1, 2025. A median break and eastbound left turn lane shall be
constructed at the existing Millwood Pike and Inverlee intersection prior
to November 1, 2015.
Formatted: Indent: Left: 0.5", Hanging:
0.5", Space After: 0 pt
Page 9 of 16
15.4 The Applicant shall design and construct Tazewell Road as shown on the
MDP as a minimum two lane roadway within a variable width right of
way with a maximum right of way width of 60’ to provide access to
residential uses within Land Bay 1 and other commercial areas of Land
Bay 2. Said 60’ right of way width shall be required for Tazewell Road
between Coverstone Drive and the Armory entrance.Pendleton Drive. The
right of way and road width shall decrease for the remaining portions of
Tazewell Road. Said roadway shall be constructed in phases as needed for
future subdivision plans. Furthermore, no certificate of occupancy for any
residential dwelling that is served by Tazewell Road, excluding model
homes, shall be issued until such time that access to Land Bay 1 from
Millwood Pike is provided via Coverstone Drive and Tazewell Road.
15.5 The Applicants shall pay to the County the amount of $75,000 for
signalization or other road improvements at the intersection of Millwood
Pike (US Route 50) and Victory Road (Route 728). Such funds shall be
paid within sixty (60) days of the issuance of the first residential building
permit in Land Bay 1.
15.6 The Applicants shall pay to the County the amount of $175,000 for
signalization or other road improvements at the intersection of Costello
Drive and Prince Frederick Drive. Such funds shall be paid within sixty
(60) days of receiving written request from the County and VDOT after
acceptance of Phase 2 Coverstone Drive Improvements per Proffer 15.2
into the State highway system.
15.7 Access to Millwood Pike shall be limited to Coverstone Drive as shown
on the MDP with the exception of the private driveway currently serving
TM 64-A-83B. The Applicant shall close said driveway once access is
provided to TM 64-A-83B via the internal residential street network as
depicted on the MDP. Additionally, the Applicant shall close the existing
crossover previously used for access to the golf course concurrent with
Phase 1 improvements as provided by Proffer 15.2.
15.8 All public right-of-ways shall be dedicated to Frederick County as part of
the subdivision approval process, consistent with applicable Virginia law.
15.9 All public streets and roads shall be designed in accordance with the
Virginia Department of Transportation specifications, subject to review
and approval by Frederick County and VDOT.
15.10 All private streets and roads shall be constructed in accordance with the
current Virginia Department of Transportation structural standards, and as
may be modified by the County, and shall be owned and maintained by the
Property Owners Association served by such streets or roads.
Page 10 of 16
15.11 The design of off-site road improvements shall be in general conformance
with the plan entitled “Governors Hill Road Improvements” Sheets 1-2, as
prepared by Patton Harris Rust and Associates, dated October 30, 2008.
Excluding 200,000 square feet of office uses which may be developed at
any time utilizing access to the existing completed portion of Coverstone
Drive, off-site improvements shall be constructed in three phases as
depicted on the aforementioned plans as follows:
Phase A: Phase A improvements shall consist of improvements at the
intersection of Millwood Pike/Inverlee Way/Coverstone Drive
and shall be completed coincident with Phase 1 Coverstone
Drive construction per Proffer 15.2.
Phase B: Phase B improvements shall consist of improvements at the
intersections of Millwood Pike/Prince Frederick Drive and
Prince Frederick Drive/Costello Drive. Phase B improvements
shall be completed coincident with Phase 2 Coverstone Drive
construction per Proffer 15.2.
Phase C: Phase C improvements shall consist of improvements at the
intersection of Millwood Pike/Sulphur Spring Road. Phase C
improvements shall be completed coincident with Phase 3
Coverstone Drive construction per Proffer 15.2.
15.12 The Applicant shall make good faith efforts to obtain any off-site right of
way needed to complete any proffered off-site transportation
improvements. In the event that the Applicant is not able to obtain the
right of way and, further, the County and/or State of Virginia do not obtain
the necessary right of way, in lieu of constructing the road improvement,
the Applicant shall provide a monetary contribution to Frederick County
that is equivalent to the estimated construction cost of those road
improvements that could not be implemented. The construction cost
estimate shall be subject to review and approval by VDOT. The monetary
contribution shall coincide with the commercial area threshold that
triggers the off-site road improvement as identified in Proffer 15.11.
15.13 Any future transportation analyses which may be required for the
Property, shall utilize Code 820 “Retail” per the I.T.E. Trip Generation
Manual 7th Edition for any commercial use other than office use.
Page 11 of 16
15.14 In the event any proffered off-site road improvements are constructed by
others, the Applicant shall provide a monetary contribution to Frederick
County that is equivalent to the estimated construction costs of those
proffered road improvements not installed by the Applicant. The
construction cost estimate shall be subject to review and approval by
VDOT. The monetary contribution shall coincide with the commercial
area threshold that triggers the off-site road improvements as identified in
Proffer 15.11.
16. CULTURAL RESOURCES INVESTIGATION AND PRESERVATION
The Applicant shall conduct or cause to be conducted a Phase I Archaeological
Investigation of the Property, prior to the approval of the first final site or
subdivision plan for the Property, and shall complete Phase II and III
investigations thereof as may be demonstrated to be necessary by the Phase I
study.
17. ESCALATOR CLAUSE
17.1 In the event any monetary contributions set forth in the Proffer Statement
are paid to the Frederick County Board County Supervisors (“Board”)
within 30 months of October 12, 2005, as applied for by the Applicant,
said contributions shall be in the amounts as stated herein. Any monetary
contributions set forth in the Proffer Statement which are paid to the Board
after 30 months following October 12, 2005 shall be adjusted in
accordance with the Urban Consumer Price Index (“CPI-U”) published by
the United States Department of Labor, such that at the time contributions
are paid, they shall be adjusted by the percentage change in the CPI-U
from that date 30 months after October 12, 2005 to the most recently
available CPI-U to the date the contributions are paid, subject to a cap of
5% per year, non-compounded.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Page 12 of 16
Governors Hill, L.L.C.
By: MS Carpers Valley Investors, L.L.C., Managing Member
By: Miller and Smith Inc., Manager
__________________________
__________________________
Charles F. Stuart, Jr. Senior Vice
President., Manager
__________________________
Charles
Page 13 of 16
F. Stuart,
Jr.
Senior
Vice
President
STATE OF VIRGINIA, AT LARGE
FREDERICKFAIRFAX COUNTY, To-wit:
The foregoing instrument was acknowledged before me this day of ,
20092013, by .
My commission expires
Notary Public
Carpers Valley Development, L.L.C.
By: MS Carpers Valley Investors, L.L.C., Managing Member
By: Miller and Smith Inc., Manager
Page 14 of 16
__________________________
__________________________
Charles F. Stuart, Jr. Senior Vice
President., Manager
__________________________
Charles
F. Stuart,
Jr.
Senior
Vice
President
STATE OF VIRGINIA, AT LARGE
FREDERICKFARIFAX COUNTY, To-wit:
The foregoing instrument was acknowledged before me this day of ,
20092013, by .
My commission expires
Notary Public
Page 15 of 16
Governors Hill Investors, L.L.C.
By: MS Carpers Valley Investors, L.L.C., Managing Member
__________________________
Charles F. Stuart, Jr., Manager
STATE OF VIRGINIA, AT LARGE
FARIFAX COUNTY, To-wit:
17.2
The foregoing instrument was acknowledged before me this day of ,
2013, by .
My commission expires
Notary Public
Formatted: Font: Garamond
Formatted: Normal, Space After: 0 pt, Line
spacing: Exactly 13 pt, No bullets or
numbering, Tab stops: Not at 1"
Page 16 of 16
MS Carpers Valley Investors, L.L.C.
By: MS Carpers Valley Investors, L.L.C., Managing Member
__________________________
Charles F. Stuart, Jr., Manager
STATE OF VIRGINIA, AT LARGE
FARIFAX COUNTY, To-wit:
The foregoing instrument was acknowledged before me this day of ,
2013, by .
D
Frederick County Planning Commission
Discussion EM/M1/M2 Heights
September 30, 2013
Page 2
The attached document shows the existing ordinance with the proposed changes supported by the
DRRC (with strikethroughs for text eliminated and bold italic for text added). This item is
presented for discussion.
Attachments: 1. Proposed Height Revisions (deletions shown in strikethrough and
additions show in bold underlined italics).
2. EDC Support Letter
CEP/pd
DRAFT Ordinance Amendment
Attachment 1
EM/M1/M2 Districts
1
ARTICLE VI
BUSINESS AND INDUSTRIAL ZONING DISTRICTS
Part 608 – EM Extractive Manufacturing District
§ 165-608.01 Intent.
The intent of the Extractive Manufacturing District is to provide for mining and related industries, all of
which rely on the extraction of natural resources. Provisions and performance standards are provided to
protect surrounding uses from adverse impacts. It is also the intent of this article to avoid the
encroachment of incompatible uses on the borders of the EM District.
*All other sections remain unchanged
§ 165-608.06 Height limitations.
No structure shall exceed 45 feet in height.
The maximum structure height shall be 45 feet. The Board
of Supervisors may waive the 45 foot height limitation provided that it will not negatively impact
adjacent uses. In order to consider the waiver, the applicant must submit all information and adhere
to requirements specified by § 165-204.28. In no case shall any structure exceed 200 feet in height.
DRAFT Ordinance Amendment
Attachment 1
EM/M1/M2 Districts
2
ARTICLE VI
BUSINESS AND INDUSTRIAL ZONING DISTRICTS
Part 601 – Dimensional and Intensity Requirements
§ 165-601.02 Dimensional and intensity requirements
The following table describes the dimensional and intensity requirements for the business and industrial
districts:
District
Requirement B1 B2 B3 OM M1 M2
Front yard setback on primary or arterial
highways (feet)
50 50 50 50 75 75
Front yard setback on collector or minor
streets (feet)
35 35 35 35 75 75
Side yard setbacks (feet) - - 15 15 25 25
Rear yard setbacks (feet) - - 15 15 25 25
Floor area to lot area ratio (FAR) 0.3 1.0 1.0 2.0 1.0 1.0
Minimum landscaped area (percentage of lot
area)
35 15 25 15 25 15
Maximum height (feet) 35 35 35 60 60 * 60 *
*In the M1 and M2 Districts the Board of Supervisors may waive the 60 foot height
limitation provided that it will not negatively impact adjacent uses. In order to
consider the waiver, the applicant must submit all information and adhere to
requirements specified by § 165-204.28 In no case shall any structure exceed 150
feet in height.
DRAFT Ordinance Amendment
Attachment 1
EM/M1/M2 Districts
3
Article II
SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS, AND REGULATIONS FOR SPECIFIC USES
§ 165-204.28. Height Waivers in the EM (Extractive Manufacturing), M1 (Light Industrial) and M2
(Industrial General) District:
Waiver requests for height increases in the EM, M1 and M2 Zoning Districts, shall adhere to the
following requirements:
1. Architectural renderings of the proposed structure shall be submitted for review by the
Planning Commission and the Board of Supervisors;
2. The Board of Supervisors may require buffer and screening elements and/or additional
distance when deemed necessary to protect existing adjacent uses;
3. The Board of Supervisors may require additional conditions as deemed necessary;
4. This waiver shall not be permitted to increase the height of any signage regulated by § 165-
201.07.
Article II
SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS, AND REGULATIONS FOR SPECIFIC USES
Part 201 – Supplementary Use Regulations
§ 165-201.03 Height limitations; exceptions.
B. Exceptions to height requirements.
(4) Automated storage facilities in the OM, M1 and M2 Zoning Districts and automated manufacturing
facilities in the M1 and M2 Zoning Districts shall be exempt from the maximum height requirement.
This exemption shall be granted only when the facility is provided with full sprinkling for fire
protection according to the specifications of applicable codes. Such exemptions shall be approved
by the Frederick County Fire Marshal. In no case shall the height of these facilities exceed 100 feet in
height.
DATE: September 25, 2013
TO: Eric Lawrence, Planning Director
FROM: Patrick Barker, CEcD, Executive Director
RE: Height Requirements in the EM, M1 and M2 districts
For the past several months Frederick County has worked steadfastly to enhance height limits
in industrial zoning districts. The chief catalyst for this effort is rooted in an EDC supported
project, a $45 million expansion by Carmeuse last year. This expansion will bring new modern
kilns to meet growing demand.
Carmeuse officials worked with Frederick County to discover a path to operate this new
investment under County Code. One such path involved a Conditional Use Permit but proved
to be problematic. This discussion required significant time.
Now time is critical as Carmeuse aims to install this new investment by the end of this year. As
such, County and Carmeuse officials have pursued a new Board of Supervisors waiver
track. County processes require public hearings on such an amendment to the County code. In
order to comply with Carmeuse's operational timeframe, staff engaged in a fast track
process. This process bypasses receiving formal feedback on the waiver amendment from the
Planning Commission prior to the Board of Supervisors’ authorization of a public hearing,
should they grant it.
I appreciate your hopeful understanding. Please contact me with any questions.