Board of Supervisors Meeting Date: 

R. Holder Trumbo, Jr., Scott District Supervisor

January 14, 2010

Staff Lead:


Frederick P.D. Carr, Director

Community Development


Appeal of the Director of Community Development’s Finding that Brookside Communities, LLC, Changes to the Concept Development Plan and Preliminary Plat are Substantial Enough to Warrant Official Amendments to the 2002 Rezoning Concept Development Plan and Preliminary Plat


Topic Description:

Brookside Communities, LLC, filed an appeal to the Director’s determination that the layout of Phases 12, 13 and 15 of the Brookside development contains modifications that, taken collectively, materially alter the character of the proposed development and are not in substantial conformance with the general nature of the approved proffered map amendment.  The most significant deviation from the approved Concept Development Plan (CDP) and Preliminary Plat (PP) is the location of the commercial area.  In the original approval, the commercial area is more internalized to the subdivision, with access clearly from local subdivision streets.  The open space/recreation area is clearly shown to be located adjoining the floodplain area.  The recent submission of Phases 12, 13 and 15 shows a future commercial area located directly on Brookside Parkway, adjoining and/or in the FEMA-designated floodplain.   The character of Brookside Parkway has changed from its original approval as an arterial, moving traffic through the Service District, to a collector road providing more direct service to the Brookside community.  Additionally, modifications to subdivision road location and connection to Brookside Parkway have been made.

Requested Action of the Board of Supervisors:

Consider approval of the attached:  resolution for affirmation; or resolution for overturning the Director’s Determination.

The Director of Community Development requests that the Board of Supervisors find that: (1) the Director was correct in interpreting the collective impacts of the street network changes and the relocation of the commercial area as presented in the analysis herein, and (2) the collective changes are not in substantial conformance with the approved Concept Development Plan and result in changing the general location and types of land uses, therefore,  materially altering the character of the proposed development.


Summary Analysis:

A.     Background Information: Brookside Rezoning Amendment & Preliminary Plat.  This appeal relates to the + 440 acre Brookside Farm (formerly Waterfield) Planned Residential Development (PRD).  On May 20, 2002, the Board of Supervisors approved the applicant’s revisions to the Proffer Statement, Concept Development Plan and Modifications Requests. Brookside Farm’s residential unit total for the PRD was reduced from 667 to 601.  In conjunction with the rezoning, a preliminary subdivision was approved including both the PRD lands and an adjoining + 459 acres of R-1 property called Brookside.  The preliminary plat included a total of 975 lots.  Attachment 1 is the Brookside vicinity map, with the portion marked as #1 representing the location of the “Brookside Farm” PRD, while the portions marked #2 were the added Brookside (R-1) neighborhoods.

B.     Background Information: Lake Drive Neighborhoods.  The residential neighborhoods (Waters Edge and Lakewood) located along existing Lake Drive (Rt. 1306) opposed the extension of Lake Drive and its direct connection to Brookside Parkway during the public hearing stage for the zoning amendment in 2002.  Since this issue could not be resolved at the rezoning amendment stage, Brookside offered the following proffer to attempt to address the problem:

“Final decision as to the minimization of traffic on Lake Drive shall be made at or prior to the final construction plan/final plat stage. Options for minimization shall include but not be limited to the following options: eliminating the wetlands/bridge crossings which result in neighborhood street connections to Lake Drive, four way stops and other traffic calming measures. Final minimization decisions shall be made by the Board of Supervisors, within 45 days of a specific written request by Applicant for such a decision. If the Board fails to act within the 45 day period, then the approval of these proffers shall govern. Any changes mandated by the Board shall not operate to effectively isolate one portion of the Entire Project from the others (i.e. all of the through streets from Lake Drive cannot be cul-de-saced) and shall not be considered a substantial deviation from the Concept Development Plan requiring amendment.  Brookside Farm PRD Revised Proffer Statement (III. Transportation Improvements, Item C.2)”

County staff, in consultation with its transportation consultant (Kellerco) and VDOT, identified five options with a variety of access choices for Transportation Committee consideration.  These were also presented to the affected neighborhoods within the Lake Drive area.  The preferred alternative (Option 1) unanimously recommended by the Transportation Committee was approved by the Board of Supervisors on December 16, 2002. The approved option is included within Attachment 2 and entitled Lake Drive Alternatives, Option 1

The following summarizes the result of selecting Option 1:

§  The proposed extension of Lake Drive was not allowed to connect directly to the Brookside Parkway but rather onto Shepherdstown Road.

§  Planned Brookside Farm neighborhoods in that northeast project quadrant could access Riley Road and Shepherdstown Road (Rt. 793) via Lake Drive and were limited to one Brookside Parkway access point near the Vint Hill property line.

Though not at issue in this appeal, Brookside Farm streets, opposite the Mallard Court and Wintergreen Court intersections with Lake Drive, were restricted in their length and are precluded from having any bridge crossing access to the south to the balance of the residential development.

C.     Deviations Request.

1.      Applicant Request:  Brookside, LLC, Letter Dated: September 1, 2009; Request for Construction Plan Approval – Cases CPRV09-SC-005 & SPMA09-SC-010.  The applicant submitted the Brookside Parkway Extension and Construction Plan (Phases 12, 13, 15) on April 17, 2009.  The June 29, 2009 combined agency review comments report identified several areas of substantial and material inconsistencies with the Board of Supervisors approved 2002 Preliminary Plat and Concept Development Plan.  The applicant had been advised of several potential inconsistencies at a pre-application meeting held on March 31, 2009. At this meeting, the applicant was informed that amendments to the Concept Development Plan and Preliminary Plat were required due to: (1) the change in the location of the Village Center Commercial to the floodplain area, (2) the shifting of Lake Drive and its connection to Brookside Parkway and (3) the change in the character of Brookside Parkway with direct access to future commercial development.  There was also a change in the library site, which was processed as a Comprehensive Plan Compliance issue (Code of Virginia Section 15.2-2232) as the original approval allowed a library to be located in an open space area.

In a September 1, 2009 letter, Brookside Communities, LLC, requested that its filed construction plan and identified deviations be approved, with the plan being “100 percent” in substantial conformance with all prior County approvals (refer to Attachment 3).

2.      Basis for the Director of Community Development’s Determination.  The Director of Community Development’s October 8, 2009 determination letter to Brookside Communities, LLC, is included as Attachment 4.  It is the Director’s position that the proposed deviations represented in the construction plan, taken collectively, materially alter the character of the proposed development as approved in the 2002 rezoning amendment. The collective alterations to the street network and the relocation of the commercial area are the two most significant deviations. One example is the eastward shift of Lake Drive that creates a commercial area to the east of the floodplain and adjoins Lake Drive that was previously residential.  The changes in the construction plan are explained in more detail below. 

Brookside Parkway & Non-Residential Land Uses: A key element that shaped many of the changes in the recent submission from the approved Concept Development Plan (CDP) and Preliminary Plat is the straightening and southward relocation of Brookside Parkway.  This relocation has taken land area previously located in CDP Land Bays M and N, south of the parkway and shifted it north of the parkway. 

As a result of this land area relocation, the library/open space site next to Henry’s Pond (now Lake Wesley) has been increased in size (with land from Land Bay M), as has the area desired by Brookside for commercial development on the east side of the Lake Ashby floodplain (with land from Land Bay N). 

Land Bay N was designated in the original CDP approval for Community/Neighborhood residential development.  With this alignment shift, the number of residential lots south of the parkway has been reduced from 36 (on the preliminary plat) to 27 (in the current submission), while the number of residential lots north of the parkway has increased from 100 to 158.  Overall, the number of residential lots in Phases 12, 13 and 15 increased 36% over the approved preliminary plat, from 136 to 185 lots.   While the development is limited to an overall maximum number of units, Brookside failed to provide information to identify the location of the portion of the project that was sacrificing the additional units.   Additionally, the 2009 Construction Plan shows the designation and addition of “Future Commercial” within Land Bay N. 

Due to the complexity of the changes, more detailed analysis is presented in Attachment 5

For reference purposes, Attachment 6 is the approved 2002 CDP; while Attachment 7 is the approved 2002 Preliminary Plat.  Attachment 8 and Attachment 9 represent the applicant’s revised schematics.

It is noted that this parkway realignment more effectively accommodates the developer’s preferred location for the proposed library site, a relocated village center (commercial) and a country inn (refer to Attachments 8, 9 and 10). The developer has shown these land use groupings via colored renditions previously and individually to Board members.  This threshold project change in the northeast project quadrant exceeds the administrative authority granted in the Fauquier County Zoning Ordinance Sections 4-115 and 13-202.2.D. and an application for amendment after Board of Supervisors public hearing is required.

Even though the proposed and resulting relocation of non-residential uses is both commendable and more preferred for the Brookside and New Baltimore community from the staff’s perspective, it is not in substantial conformance, as defined by the Fauquier County Zoning Ordinance, with the currently approved 2002 “Brookside Farm” rezoning and CDP (Attachment 6). Substantial conformance is “that conformance which leaves a reasonable margin for adjustment due to final engineering data but conforms with the general nature of the development, the specific uses, and the general layout depicted by the plans, profiles, elevations, and other demonstrative materials presented by the applicant.”  [Reference: Fauquier County Zoning Ordinance Section 13-202.2.D (5)].  The Department consistently encouraged the developer to follow the rezoning amendment process, since they now have a better and more refined commercial concept.

Without the relocated village center and library, the minor alignment change to Brookside Parkway, Lake Drive, the new Millside Lane, Shepherdstown Road extension and some other street network enhancements are not needed in the configuration shown in the pending 2009 construction plan. The applicant has not filed any revision to its preliminary plat for this affected area. Below are the specific areas of concern that need further review and vetting through the public hearing process:

§  Community Center (building, pool, tennis courts) and Village Center (commercial) land use designations have switched locations. For example, the Village Center had formerly been located more internally to residential neighborhoods (refer to Attachment 6 and Attachment 7).  More specifically, the commercial area was placed between Pond Court (now Boathouse Road) and the southern portion of Lake Ashby.  Now it is proposed on the eastern edge abutting both sides of Brookside Parkway (refer to Attachment 9). This places the commercial land directly on Lake Drive and Shepherdstown Road;

§  The new Village Center location is bisected by the FEMA designated 100-Year Floodplain (Zone A). This development is prohibited by the County’s floodplain ordinance. Brookside is currently seeking a change in the floodplain designation from FEMA to a shaded Zone X, which represents a lesser 100-year flooding designation where the average flooding depth is less than one foot and/or the drainage area is less than one square mile.  Whether or not  Brookside is successful in gaining that reclassification, a text amendment to the Zoning Ordinance regarding structures in the floodplain will be needed;

§  Additional non-residential use (e.g., Country Inn) could become part of an expanded commercial area (along Lake Drive and Millside Lane).  The 2002 CDP designates a portion of this area as open space and “traditional neighborhood” and the section affected would require revision to the Village Center.  The approved rezoning provides a maximum of 55,000 square feet of commercial that would likely be exceeded by inclusion of the inn;

§  Expands further the Village Center commercial area east and across Brookside Parkway.  The land involved was designated as “Community/Neighborhood” in the adopted 2002 CDP, requiring revision to reflect this land use change;

§  With the Village Center’s proposed Brookside Parkway location and the increased number of lots north of the parkway, the developer changed traffic in the Lake Drive and Shepherdstown Road (Rt. 793) neighborhoods.  The Center’s natural attraction to just Brookside and New Baltimore patrons and its proposed and direct drive connections with Millside Lane, Lake Drive and Shepherdstown Road are anticipated to alter traffic patterns and volume from that studied and expected in the approved 2002 rezoning (refer to Attachment 10). 

The proposed land use changes and their associated traffic are anticipated to place different demands on Lake Drive and Shepherdstown Road (Rt. 793).  For example, Rt. 793 may need intersectional improvements at Lake Brittle Road/Aiken Drive and Rt. 600. Care needs to be taken regarding the probable changes in volume, need for traffic calming measures and other needed street enhancements to accommodate the network connectivity improvements being proposed.

Lake Drive Resolution:

The Shepherdstown Road extension in the 2009 Construction Plan moves a short distance south to intersect with Millside Lane, which provides a second connection between Boathouse Road and Lakeway Lane (now Brittle Ridge Road).  Per the Board of Supervisors 2002 action approving the network change in this area, no other access to the parkway was to be allowed from the Lake Drive area (Attachment 2; Option 1). This Brookside neighborhood had access to Shepherdstown Road and Riley Road (via Lake Drive and its extension) and one access point to the parkway.

The developer’s proposed Lake Drive to Millside Lane connection with Brookside Parkway cannot be approved either administratively or via a preliminary plat revision as reflected in Attachment 2.  Such a proposed road connection is simply at odds with the approved 2002 Board resolution. This access decision was based on a process that included neighborhood input and Board requested recommendations from the Transportation Committee. (Reference Title: Resolution for the Lake Drive Alternative Selection pursuant to the Brookside Farm Proffer Statement, Item C.2; Approved: 12-16-02).

The proposed road network represents a network connectivity improvement from the Department’s perspective.  However, such a change requires, at a minimum, that a public hearing be held by the Board of Supervisors. Furthermore, any Lake Drive “corridor” decision is complicated since commercial site locations are being proposed for locations not envisioned in the approved rezoning and Concept Development Plan. The non-residential concepts are an improvement and need to be pursued further through the rezoning amendment process for the reasons cited previously.

Criteria for Minor Deviations Approval Not Achieved:

Section 4-115 of the Zoning Ordinance for Planned Residential Development (PRD) allows the Director to approve minor deviations that are in substantial conformance with the approved Concept Development Plan, subject to specified criteria. In order to approve the minor deviations, the Director must determine that:

a)   the deviations are necessary due to requirements of topography, drainage, structural safety or vehicular circulation; and

b)   such deviations will not materially alter the character of the proposed development plan, including the proposed development phasing, and do not violate other binding components of the Plan including approved Proffers.

The Zoning Ordinance prohibits the Director from approving deviations that “include changes to the general location and types of land uses; an increase in the total number of dwelling units or the floor area for commercial uses; or a decrease in total area for open space and recreational amenities.”  Changes that do not meet these requirements are “not deemed minor deviations” and require amendments to the approved rezoning by the Board of Supervisors.

The changes in non-residential (e.g., the community center and commercial) land use locations, network enhancements associated with the realignment of Brookside Parkway, Lake Drive and the extension of Shepherdstown Road to a new Millside Lane would change the character of the proposed development in this northeast quadrant, network connections and probable traffic flow and general location and geographic coverage of specified non-residential land use types.  Hence, these requested changes cannot be administratively accommodated and approved through Section 4-115 of the Zoning Ordinance.

In addition, such changes need to conform to Section 13-202.2.D (Proffered Condition Regulations) of the Zoning Ordinance for substantial conformance.  Here such conformance “leaves a reasonable margin for adjustment due to final engineering data but conforms with the general nature of the development, the specific uses, and the general layout depicted by the plans, profiles, elevations, and other demonstrative materials presented by the applicant for that approved rezoning.” Such conformance has clearly not been justified or accomplished.

D.     Brookside Communities, LLC, Appeal.  Brookside Communities, LLC, appealed the determination that the proposed changes were outside of the authority of the Department of Community Development (DCD) to administratively approve in correspondence dated October 8, 2009.  (Refer to Attachment 11).

The Applicant maintains that the determination:

1.      mistakenly determined that Concept Development Plan (CDP) or Preliminary Plat (PP) revisions were required, and failed to separately address any of the DCD issues, failed to consider the Lake Drive Board of Supervisors Resolution, and failed to provide relief under Zoning Ordinance Section 4-115;

2.      may have the unintended consequence of creating VDOT required through street connections where cul-de-sac roads exist in adjacent existing subdivisions, including street connections through Grapewood Estates, Rock Springs, Lakewood, etc.;  and

3.      may have the unintended consequence of creating VDOT required through street connections where cul-de-sac roads were created by the Board of Supervisors Lake Drive Resolution, in Phases 10 and 11, and thus overriding the Board action mandating cul-de-sacs, including through streets to Mallard Ct. and Wintergreen Ct.

The Applicant asserts that the rezoning amendment process is unnecessary, the deviations are in substantial conformance with the CDP and Preliminary Plat, and that the currently pending construction plan be approved as presently submitted.

E.     Conclusion.

1.      Summary.  In this report and the associated attachments, the Department presented the basis for the October 8, 2009 determination and response to the developer.  Even though the proposed and resulting relocation of non-residential uses and revised street network in the northeast quadrant of the project is both commendable and more preferred for the Brookside and New Baltimore community from the staff’s perspective, it is not consistent with the currently approved 2002 “Brookside Farm” rezoning and CDP (Attachment 6) or the Board’s Lake Drive 2002 Resolution (Attachment 2, Option 1). The collective changes cannot be administratively approved from our perspective for the reasons cited herein.

2.      Street Connections. In the appeal, the developer has attested that this determination may have the unintended consequence of VDOT mandating the street connections as represented in D.2-3 above. That information is not correct and appears contrary to guidelines contained in the recently enacted state regulations under the grandfathering provisions for approved rezonings with proffered street layouts prior to March 9, 2009 or approved preliminary plats and construction plans prior to July 1, 2009 (24VAC30-92-20.B.1-6).   In addition, there is simply no VDOT requirement under the new regulations forcing connections into adjoining/fully developed subdivisions planned with cul-de-sacs with no external access approved.  (Reference: VDOT Secondary Street Acceptance Requirements (Administrative Code; 24VAC30-92-10 to 150).

3.      Board Issues. 

The first question for the Board of Supervisors is whether the Director was correct in interpreting the collective impacts of the proposed street network changes and relocation of the Village Center (Commercial), as presented in C.2 and the associated attachments referenced in that analysis. As a result of that analysis and subject to Section 4-115 of the Zoning Ordinance for approving requested deviations in a Planned Residential Development (PRD), it was found that the changes together were not in substantial conformance with the approved 2002 Concept Development Plan (CDP) and resulted in:


§  materially altering the character of the proposed development; and

§  changing the general location and types of land uses.

The Director’s determination was that the changes were not compliant with this section and could not be deemed minor deviations. Substantial conformance can only be found when the requirements of Section 13-202.2.D(4) and (5) of the Zoning Ordinance are met:

§  No plan category submitted can be approved by any County official in the absence of substantial conformance to the approved “proffered map amendment”; and

§  Substantial conformance means that conformance which leaves reasonable margin for adjustment due to final engineering data but conforms with the general nature of the development, the specific uses, and the general layout depicted by plans, profiles, elevations, and other demonstrative materials presented by the applicant.

a.       Board of Supervisors Affirmation Action:

If the Board of Supervisors agrees with the Director, the Department is prepared to assist Brookside Communities, LLC, in processing the rezoning and preliminary plat amendments reflecting the changes discussed herein for County’s public hearing and approval process.  In addition, the applicant will need to obtain the approvals outlined in b.1-3 below.

Again, staff indicates that the relocation and expansion of the Village Center along Brookside Parkway and the resulting street network enhancements in the northwest quadrant are better than the 2002 Plan’s more internalized commercial version within the residential neighborhoods. However, this more neo-traditional approach needs further public exposure and comment due to their affects to the existing local and adjoining neighborhoods.

b.      Board of Supervisors Reversal Action:

If the Board reverses the Director’s determination and agrees with the developer that the changes represent minor deviations consistent with the approved 2002 CDP and the criteria contained in Section 4-115 of the Zoning Ordinance, then the following actions need to occur:

1)      Board of Supervisors needs to subsequently approve a revision to its 2002 Resolution for the Lake Drive Option 1, based on the applicant’s proposal, proposed traffic volumes, citizen comment and other requested information in accordance with the process outlined in the approved proffers (III.C.2);

2)      Developer submission of a revised preliminary plat for the Planning Commission review and approval that meets County land development regulations and reflects the changes in residential lot locations, streets eliminated, new streets added, and changed street alignments portrayed in the Final Construction Plan for the Brookside Parkway Extension and Phases 12, 13, and 15; and then

3)      Administrative County approval of the filed construction plan (CPRV09-SC-005) upon resolution of other outstanding issues by review entities.

Financial Impact Analysis:

None is required.

Identify any other Departments, Organizations or Individuals that would be affected by this request:

Brookside Communities, LLC
Lake Drive Neighborhoods
Shepherdstown Road Neighborhoods


Attachment 1:    Vicinity Map

Attachment 2:    Resolution for the Lake Drive Alternative Selection (December 16, 2002)

Attachment 3:    Brookside Communities, LLC, Deviations Request (September 1, 2009)

Attachment 4:    Department of Community Development Determination (October 8, 2009)

Attachment 5:    Brookside Deviations Request and Broader Issues Summary

Attachment 6:     2002 Approved Brookside Rezoning Amendment Concept Development Plan (Excerpt)

Attachment 7:    2002 Approved Brookside Preliminary Plat (Excerpt)

Attachment 8:     2009 Construction Plan Brookside Parkway Extension & Community Development (Phases 12, 13, & 15)

Attachment 9:    Brookside Village Center Illustrative

Attachment 10:  Revised Transportation Network 

Attachment 11:  Brookside Communities, LLC, Appeal Package

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