Owner/Applicant:                                                     Board of Supervisors Meeting Date:


W. Robert Gaines, Trustee, Owner                                                               January 20, 2004

Angler Development, LLC, Applicant


Staff Lead:                                                                                                       Department:


Elizabeth A. Cook, Chief of Planning                                   Community Development


Magisterial District:  Scott                                                                                       PIN(s):


Service District:  New Baltimore                          7916-22-4949-000 & 7916-12-8941-000


Topic:  A Resolution to Deny Comprehensive Plan Amendment CPA03-S-09 and Rezoning Request RZ03-S-17 Bishop's Run


Topic Description:


The subject property is within the New Baltimore Service District Plan and planned designated for Low Density Residential Up to 1 Dwelling Per Acre, Mixed Use Neighborhood: Planned Commercial & Up to 3 Dwelling Units Per Acre, and Commercial Neighborhood.  The site encompasses 62.8901 acres; with 31.3806 acres zoned Residential (R-1) and 31.5095 acres zoned Commercial - Neighborhood (C-1).  The applicant proposes to create a mixed-use community by retaining approximately 9.14 acres of the existing C-1 zoning and rezoning the balance of the property to Residential R-4 Conventional and Cluster.  At staff's recommendation, the applicant revised its original Comprehensive Plan Amendment to request a re-designation to a new land use designation of Low Density Residential Up to 3 Dwellings Per Acre (single family attached permitted).  This designation more clearly illustrates the applicant's proposal. 


Requested Action of the Board of Supervisors:


Hold a public hearing and consider the attached resolution


Planning Commission Action:


Beginning on August 28, 2003, the Planning Commission held the first of several public hearings on these applications.  During the public hearings, the primary issues raised included: density of the development, impacts to the School system, traffic generated by the development, the townhouses proposed, impact of the development on the limited sewer resources in the New Baltimore Service District, and the need for a joint fire and rescue and solid waste transfer site.  On December 18, 2003, the Commission forwarded the Comprehensive Plan Amendment CPA03-S-09 and Rezoning RZ03-S-17 to the Board of Supervisors with a recommendation of denial based on the following reasons:


  1. The project density exceeds expectations for this area in the New Baltimore Service District.
  2. The applicant should provide the full County Proffer Policy contribution for the proposed residential units and a contribution for the 20 apartment units.
  3. The amount of credit proposed for the off-site property dedication for the Fire and Rescue site is a concern.
  4. The proffer contributions should be made at the time of the Building Permit rather than the Occupancy Permit, pursuant to the County Proffer Policy.
  5. The proposed sidewalk/trail should be along the frontage of the property, including the commercial property.
  6. Clarification is required on what turn lanes are needed along Riley Road, and that the applicant will provide those improvements.
  7. The number of residential units to be developed per year needs to be limited (i.e., phasing schedule needs to be developed).
  8. Clarification is needed on what recreational facilities for residents will be located on the property in the park and open space areas.


Land Area, Location and Zoning:


As shown on the following map, the property straddles Riley Road (Route 676) between Route 29/15 and Broad Run Church Road (Route 600).  The portion on the east side of Riley Road abuts the C. Hunter Ritchie Elementary School property.


Project Summary:


The development concept would produce an overall residential density of 2.55 units/acre consisting of: 148 units (69 single-family detached units and 79 single-family attached units) in the new R-4 zoning district, and a maximum of 20 apartments on the remaining C-1 property for a total of 168 residential units. 


The applicant is providing 5.5 acres for a Fire and Rescue facility that may also be used by the County for a waste transfer/recycle center.  In addition, the applicant is proffering to extend water and sewer lines to the proposed County site, as well as providing the requisite site clearing and rough grading.  The Fire and Rescue facility includes 3.27 acres of the subject property and 2.23 acres of adjoining property that the applicant will acquire for the proffered dedication.


Fifteen (15) of the single-family detached lots are located on the 18.3 acres on the east side of Riley Road, which is currently designated for Low Density Residential Up to 1 Dwelling Per Acre.  The applicant has proffered to develop these lots based on R-4 Conventional standards with an average lot size of 30,000 square feet.  With the floodplain located in this area and the Fire and Rescue facility land dedication, the proposed density in this location is less than one (1) unit per acre.  The Concept Development Plan (CDP) is included as Attachment 1Attachment 2 is a copy of the applicant's January 7, 2004 Proffer Statement. 


The applicant proposes to develop the remaining C-1 acreage with a maximum of 65,000 square feet retail/commercial/office space, including the identified 20 apartments located on the upper level above the retail/office uses, plus, a day care facility (8,000 square feet)  As proffered, the apartment units would be limited to one and one-half stories, with no more than two bedrooms per unit. 


For the 9 acres proposed to remain zoned C-1, the applicant is now proffering a CDP and development conditions that will restrict the use of the property.  These restrictions include prohibition of the following uses:


  • Auto repair garage
  • Car wash
  • Motor vehicle impoundment yard
  • Automobile sales or rental facility
  • Broadcasting studio
  • Recreational vehicle storage area
  • Kennel/animal shelter
  • Indoor theatre
  • Recycling center



Staff Analysis:


Staff and appropriate referral agencies have reviewed this request for conformance with the Comprehensive Plan, the Zoning Ordinance, and other relevant policies and regulations.  Staff and referral agency findings, comments, and recommendations are summarized below.


The Comprehensive Plan


The property is located within the New Baltimore Service District and is planned for development with varying degrees of intensity.  Approximately 26 acres are planned for Commercial Neighborhood, 12 acres are planned for Mixed-Use Neighborhood (up to 3 dwellings per acre), and 15 acres are planned for Low Density Residential, with up to 1 dwelling per acre.


The existing C-1 (Commercial Neighborhood) zoning has potential land densities and scale not compatible with C. Hunter Ritchie Elementary School.  If the commercial neighborhood were to be developed at a 0.25 Floor Area Ratio (i.e., a ratio of 1 square foot of retail space per 4 square feet of lot area), the resulting complex would produce a community shopping center along the lines of those containing a junior department store (e.g., Peebles), a very large grocery and drug store, and numerous smaller stores totaling over 340,000 square feet.


The transportation component of the New Baltimore Service District Plan indicates that, in addition to Riley Road, a 2 lane urban road is planned to bisect the western portion of the Gaines property.  The planned location of this road is at approximately the same location of the main entry road shown on the applicant's CDP.  Even if Riley Road at this location were improved to four lanes in the future by VDOT, it could not serve as both the primary entrance road to such a commercial center and one of New Baltimore's few links to U.S. Route 29/15.  The applicant has proffered an interparcel connection to the west to address this Comprehensive Plan road alignment.


What appears to be a planned overproduction of commercial space has a more logical explanation.  During the preparation of the New Baltimore Service District Plan, a decision was made that the land use map for the subject area would reflect existing zoning.  In part, this decision was predicated on the understanding that while the area designated for commercial development might be more than desirable, it was also not sustainable by market forces.


The Plan assumed that, at the appropriate time, the owner(s) would work with the County, the elementary school, and the neighborhood to "fine tune" a development proposal to strike a more favorable balance between commercial and residential development in the area.  As envisioned by the Plan, the applicant has scaled back some of commercial land use intensity to proportions more consistent with the character of the New Baltimore neighborhood and the capacity of Riley Road.  At the same time, they have proposed a denser residential component to support the planned commercial development.


It needs to be noted that the Service District Plan includes a traffic circle for the intersection of Route 600 and Route 676.  The purpose of this planned traffic circle is to provide a safer distribution of traffic at the intersection and introduce a traffic-calming element near C. Hunter Ritchie Elementary School.  Historically, in addition to proffered cash contributions, developers have made proportionate contributions to transportation improvements in the area of their sites.  The applicant has proffered a $25,000 contribution toward the signalization of the intersection of Route 29 and Riley Road.  In addition, a $25,000 contribution is also proffered for future improvements to the Route 676/600 intersection, upgrading Riley Road between Route 29 and Route 600, or for the intersection of Riley Road and Route 29. 


Requirements of the Zoning Ordinance


Section 13-202-4 of the Zoning Ordinance provides for amendments to the adopted Comprehensive Plan, provided the applicant presents justification based on one or more of the following considerations:


  • Creative Concepts - presentation of innovative approaches to land use not currently contemplated in the Comprehensive Plan.


  • Oversights - the subject property was omitted or misinterpreted in the original plan review process.


  • Change in Circumstances - there has been a significant change in surrounding land use since the original Plan review process.


  • Goals - the goals of the Plan would be better met with the proposed modification, or better implemented if such amendments are adopted.


  • Hardship - an applicant has a unique hardship on the subject property not identified in the original Plan review process.  Such "hardship" shall be similar in definition to that as defined in this Ordinance.


In the document "Gaines Plan Amendment Presentation" (included as Attachment 3), the applicant contends that the proposed Comprehensive Plan Amendment addresses three of these criteria: a change in circumstances, a significant planning oversight, and a better means of attaining the Plan's goals.


As evidence of a change in circumstances since the adoption of the Plan, the applicant cites an upgrade in supporting infrastructure as reflected in the planned expansion of the Vint Hill wastewater treatment facility.  The applicant argues that this upgrade brings with it an increase in both a demand and capacity to support residential development that is not adequately contemplated in the current Plan.


Staff does not concur with this characterization.  While the applicant proposes a change in the allocation of sewage treatment capacity (from commercial to residential development), such a change does not constitute a change in the capacity contemplated in the Service District Plan.  The Plan addresses both the initial and second phase capacity associated with the expansion of the Vint Hill facility.  The Plan provides a specific analysis of New Baltimore Service District's Proposed Local Sewers, including the location of anticipated trunk lines.  Although new lines are now being constructed within the Service District, the ultimate capacity of the plant has not changed since the adoption of the Plan.


With regard to the perceived planning oversight, the applicant maintains that the current concentration of commercial neighborhood use, without supporting residential development, creates a market imbalance.  The applicant contends that successful commercial neighborhood development is dependent upon either close proximity to a major thoroughfare or to a sufficiently large residential community in order to attain the critical market mass that will support diverse commercial activity.  The applicant further claims that the Plan's designation of C-I uses some distance from U.S. Route 29/15 argues for a stronger residential component in that area of the Service District.  Failure to provide for such a component is, in the applicant's estimation, a "significant oversight" in the planning process.


Finally, the applicant presents the case that an improved balance of residential and commercial development in this area would bring the following benefits:


  1. It would provide a more sensitive land use edge to the Service District's eastern rural boundary in this area;
  2. It would be more compatible with the existing C. Hunter Ritchie Elementary School environment; and,
  3. It would enhance the Plan's objective of protecting the County's rural/agricultural areas.


The January 7, 2004 Proffer Statement has introduced a new proposal.  The "Land Use" proffer states that the apartment units shall be permitted to share parking with the commercial uses and are authorized zoning waivers as may be required to permit design and construction as generally depicted on the CDP.  Zoning Ordinance waivers may not be approved by proffered conditions with conventional rezoning applications.  The Board of Supervisors is permitted to grant Zoning Ordinance waivers only with Planned Districts.  The applicant's Proffer Statement needs to be amended to remove this reference.  In addition, it is not clear that the CDP meets all Zoning Ordinance and site plan requirements. 


Additional Zoning-Related Comments


  1. The townhouse proposal will require site plan approval, as will the commercial and apartment development.


  1. In accord with Section 7-603.2 of the Fauquier County Zoning Ordinance, Residential Subdivisions, a landscape plan will be required for the R-4 zoning district at record plat or construction drawing phase.


  1. The bulk regulations for the applicable zoning districts should be shown on the plan.


  1. The recreational area and trails should be shown on the conceptual plan.


Engineering Considerations


The Engineering Division has reviewed the applicant's requests and has provided the following comments:


  1. SWM/BMP's will be required for this site.  More than 1 facility may be required to meet the minimum requirements.


  1. Some of the soils in these properties are characterized as hydric.  A wetland study should be performed and state and federal permits obtained as required prior to Final Construction Plan approval.


  1. The proposed cul-de-sacs do not meet the minimum requirements for length.


  1. It should be noted that in an earlier submittal, several dwellings were shown in the FEMA designated 100-year floodplain.  In response to staff comments, the applicant has revised the CDP to relocate the dwellings outside the floodplain.


The Engineering Office verbally indicates that an additional proffer should be included that states the following:


        No modifications shall take place in the areas currently designated as in the FEMA 100-Year Floodplain until the revised floodplain has been approved by FEMA.




After reviewing the package submitted by Greenhorne and O'Mara, Inc., and stamped by Robert C. Baker, L.S. on July 31, 2003, the County Soil Scientist provided the following comments:


  1. As stated in a July 23, 2003 staff report, the general soils information showed areas of concern.


  1. A detailed soil report will be needed in order for the reviewing agencies to conduct a comprehensive review of this project, particularly if this proposed subdivision is submitted as a preliminary plat.


  1. The applicant needs to complete the requirements for either a Preliminary Soil Report or Type I Soil Map prior to submitting a preliminary plat.


Proffer Analysis


The applicant has submitted a detailed Proffer Statement outlining a significant number of improvements and/or dedications both on and off-site, as well as a proposed cash proffer to the County.  The current proffer package reflects revisions that address some of the needed refinements noted by the Planning Commission.  For example, the monetary contributions are now proposed to be made at the building permit application stage, and the credit for the off-site Fire and Rescue site has been reduced from $850,000 to $450,000.


As noted earlier, the applicant proposes the dedication of more than 5.5 acres for use as a Fire and Rescue site.  This site may also be used for a waste transfer/recycle center.  The dedication of the Fire and Rescue site is particularly significant.  The applicant currently controls a 3.27-acre property that is intended for dedication to the Fire and Rescue Service.  While the location of this property is desirable, it is constrained by 100-year floodplain.  Consequently, the usable area does not offer enough property for Fire and Rescue requirements.  In order to accommodate these requirements, the applicant has proffered to acquire and add 2.23 acres of land adjacent to the proposed public safety site.  The resulting 5.5-acre site would provide the Fire and Rescue Service with a location for its new fire station and a community hall.


The Table below summarizes the cash contributions expected for Bishop's Run public facilities.  The Proffer Policy governing these contributions covers environmental services, fire and rescue, libraries, Parks and Recreation, Schools, and the Sheriff.


Base Proffer Calculation


Per Unit Cash Contribution Per Proffer

Policy                                                                                       $14,730

Proposed Residential Units                                                              168

Less By-Right Residential Units in R-1 District                                 (30)

Units Subject To Proffer Policy                                                        138


Calculated Cash Proffer (138 X $14,730/unit)               $2,032,740


As shown in this base calculation, the number of units subject to the Proffer Policy has been reduced by the units that would be allowed by-right on the land currently zoned R-l.  There is no "by-right" residential density on the C-l property. 


The applicant has proffered cash contributions of $11,890 per single-family detached and attached dwelling units after the 30th building permit.  However, no contribution is proposed for the apartment units or the other elements included in County Proffer Policy.  To help offset the other Proffer Policy elements, the applicant has proposed credits for the other items included in the proffer package, resulting in a cash proffer as presented in the table below:


Proposed Credits


Contribution                                                                                         Value



Schools cash payment for 118 units ($11,890/lot)                       $1,403,020

Fire and Rescue:

On-site Fire & Rescue dedication (3.27 acres)                               $   110,624

Off-site Fire & Rescue dedication (2.23 acres)                              $   450,000

Off-site Fire & Rescue water line                                                     $     35,000

Off-site Fire & Rescue site preparation work                                   $     25,000

Off-site Fire & Rescue sewer line                                                     $     45,000

Fire and Rescue total                                                                   $   665,624


Off-site traffic improvement (Rt.676/Rt. 600)                                   $     25,000

Off-site contribution to traffic signalization (Rt.676/Rt. 29)                $     25,000

Transportation total                                                                      $     50,000


Applicant's Proffer Contribution Credits:                                     $2,118,644


During the Board of Supervisors' review of the proposed development, the Board must determine whether the value to the County of these proffers (e.g., cash contributions, land dedications, actual improvements, and development opportunities) is sufficient compensation for a very specific monetary loss by not meeting the full Proffer Policy contribution of $14,730 per unit or $2,032,740 plus proffer contributions to offset transportation impacts.  In addition to the credits noted above, the applicant has proffered an off-site WSA New Baltimore 12-inch water main extension with a credit proposed of $125,000.  It is not clear what portion of the water main extension is a necessary expense for the development and what portion the credit reflects just the over sizing requested by WSA.  Attachment 4 is the applicant's public facility analysis.


It is important that the impact of the proposed residential component of Bishop's Run on the School system not be obscured by the debate over changing land use, public facilities, and land dedication.  The expected voluntary contribution of $14,730 per unit contained in the County's Proffer Policy includes cost increments for Environmental Services, Fire and Rescue, Parks and Recreation, the Sheriffs Department, and Schools.  The Proffer Policy allocates a cost to Schools of $11,850/unit.  After deducting the applicant's 30 by-right units from the proposed 168 unit residential development, the Proffer Policy anticipates a cash contribution of $1,640,820 for schools alone.  The applicant proposes a cash proffer of $1,403,020 for 118 units, approximately 85% of the anticipated amount if the apartment units are included.  Despite the existing proffer package, staff questions any lesser cash contribution that will have a negative impact on schools.


Summary and Recommendation:


The applicant submitted a revised Proffer Statement on January 7, 2004.  While the applicant has made several refinements to the proffers, staff and the referral agencies have not had an opportunity to complete a thorough review of the revisions.  However, several items of concern have been noted in this report.  In addition, staff has had initial comments from VDOT indicating concern about the language related to trail construction along Riley Road, and has a concern about the appropriateness of the language of the cash contributions for transportation impacts.  More work on proposed development transportation improvements for this project is needed. Cash proffers for specified improvements into an escrow fund might provide more flexibility for their leverage with other transportation funds and funding sources for the New Baltimore Service District.


The Parks and Recreation Department has requested a portion of its trail system provided within this development.  The Parks and Trail Plan for the New Baltimore Service District classifies the trail along Riley Road as a Class 2 trail that should be physically separated from motorized vehicles.  To provide a trail along Riley Road may require disturbance of the floodplain, and the applicant is hesitant to propose a trail that impacts the floodplain.  However, several recent developments have made provision for trail systems that are located within the floodplain areas.  Staff believes the applicant needs to make provision for trails along the development boundaries. 


The Water and Sanitation Authority has not had the opportunity to comment on the revised proffers.  The applicant has addressed the WSA request for the extension of a 12-inch water main from Shepardstown Road; however, the proffer makes provision that the necessary easements will be provided by others.  It is not clear if the current language is acceptable to WSA or whether the proposed $125,000 credit is a realistic value for the extension.


Based on the items noted in this report, staff does not consider the applications in a form that is approvable by the Board of Supervisors.  A resolution to deny the requests is provided for the Board of Supervisors' consideration.  However, the Board may wish to postpone action to allow time for the staff and referral agencies to continue their review of the revised proffers, or the Board may want to send the applications back to the Planning Commission for its review and recommendation. 




  1. Revised Concept Development Plan
  2. Proffer Statement
  3. Gaines Plan Amendment Presentation
  4. Applicant's Public Facility Proffers