PUBLIC HEARING AGENDA REQUEST

Owners/Applicants:

Board of Supervisors Meeting Date:

 

Sevinsky Enterprises, Inc. (Owner)

  Thomas Sevinsky (Applicant)

 

July 19, 2004

Staff Lead:

 

Melissa Dargis, Assistant Chief of Planning

Department:

 

Community Development

 

Magisterial District:

 

Cedar Run District

 

PIN:

 

7808-31-4577-000

Topic:

 

REZN04-CR-005: A Rezoning to Allow for 9.6 Acres in RA (Rural Agricultural) to I-2 (Industrial-General)

 

Topic Description: 

 

The purpose of this request is to obtain rezoning approval for 9.6 acres from Rural Agricultural (RA) to Industrial-General (I-2).  The purpose is to allow the continued use of existing commercial wash bays, the filling of propane tanks, as well as the rental of ten (10) buildings to accommodate other various businesses.  The property is located on the southeast side of Ritchie Road (Route 644).  The entire property is within the 100-year floodplain.  Two structures have a Letter of Map Amendment (LOMA) from Federal Emergency Management Agency (FEMA) that removes them from the floodplain.

 

This site has been in violation for several years.  During this time, staff has worked with the applicant to encourage him to secure necessary approvals to authorize the various uses located on his property.  During the past year, the applicant has added new industrial tenants (businesses) to his property and thus, increased his zoning violations.  The Fauquier Feed Supply business continues to operate and provide service.  In January 2004, a rezoning application was received and the Planning office has been diligently working with the applicant since that time. 

 

Staff reviewed the uses at the site and compared them to various zoning categories; Commercial-Highway (C-2), Industrial Park (I-1), Industrial General (I-2) to see where the existing uses fit.  No category allowed for all of the existing uses.  Additionally, almost all of the current uses require site plan, special permit and building permit approvals, as well as various requirements related to construction, stormwater management and landscaping.  One of the structures does not meet setback requirements; however, the applicant said that he can adjust his boundary line with the adjacent neighbor to remedy this issue.

 

The applicant’s entire property is within the designated 100-year floodplain.  However, there are two structures on the site that have a LOMA from FEMA that removes them from the floodplain.  The Zoning Ordinance significantly restricts permitted uses, for example, to farming uses, outdoor nurseries, parks, nature preserves, accessory and pervious parking, and Type II and Type III private streets.  The Ordinance specifically prohibits the placement of any structure within the floodway.  Within the 100-year floodplain, there are very limited uses allowable through the Special Exception process.  Examples would be public facilities, streets, sand and gravel extraction and the storage of materials and equipment.

 

On June 21, 2004, the Planning Commission forwarded this application with a motion for approval with a recommendation that the Board of Supervisors approve the rezoning only if the applicant has, prior to the vote of the Board, provided a suitable floodplain study and proffer statement.  The study must demonstrate that the proposed industrial zoning is feasible on the subject property and that the property has suitable land outside the 100-year floodplain to make the actual rezoning to I-2 feasible.  The proffer statement must be limited to the lawfully permissible existing uses allowed in I-2 zoning, as well as eliminate the following uses:

 

1.                      Motor vehicle freight terminal

2.                      Auto body painting establishment

3.                      Motor vehicle impoundment

4.                      Bottling plant

5.                      Stone monument processing

6.                      Sawmills

7.                      Warehousing, including moving and storage establishments; and

 

Require Special Permit approval for the following normally permitted uses:

 

1.                      Wholesale trade establishments

 

Staff notes that the applicant completed a Letter of Map Amendment (LOMA) for his property in the mid 1990s.  This allowed for two (2) structures to be removed from the floodplain: the silos and grain bins.  Since March, staff has advised the applicant to conduct a floodplain study to determine if the remainder of the property can be removed from the floodplain.  To date, the applicant has not agreed to the study.  It is important to note the differences between the LOMA and a floodplain study (Letter of Map Revision – LOMR).  Both processes are conducted through FEMA.

 

The LOMA process requires the applicant to produce a plat map, elevation certificate (from a licensed surveyor) and a completed FEMA LOMA application.  Then FEMA uses the 1% flood map existing data to determine if the lowest elevations on the property are within (or out of) the 1% flood area.  If a structure is out of the 1% area, a LOMA can be obtained for that structure.  It is important to note that the LOMA is specific to existing structures only and a base flood elevation must be established (either by existing FEMA maps on which detailed studies of stream data is available or by a consulting engineer’s estimates, based on approved practices).

 

A LOMR is more representative of a floodplain study and would provide data to support a revision to the current FEMA floodplain map.  This process requires the applicant to produce hydrological and hydraulic modeling (from a licensed civil engineer), the revised floodplain map delineated on detailed topographic mapping, and a completed FEMA LOMR application. This material must first be submitted to the County Engineer for approval and then to FEMA for final processing.  The LOMR required hydrologic/hydraulic modeling estimates peak flood flows at significant locations within a watershed or for a specific portion of a creek/stream to determine if a parcel or area is truly within the floodplain.  Surface flow direction and accumulation can also be estimated based on topography.  Variables in land use and infrastructure can be accounted for in a model (i.e., new bridges, culverts, roads, fill).

 

About 90% of the flood data in the county is not detailed with flood elevations.  This situation is also the case on the applicant’s property.  The parcel is identified with Approximate Zone A designation, which implies that some level of engineering analysis will be required.  Because a LOMA has been issued in that area previously, the engineering data may be less difficult to generate, since FEMA has reviewed and approved this flood estimation data once before.

 

The applicant must request that for this application to be postponed to allow for adequate time to conduct a floodplain study for the LOMR process.  If the applicant does not opt to conduct a floodplain analyses, the current FEMA floodplain map is the data that must be used.  This map shows the entire parcel to be in 100-year floodplain and therefore, the uses that are not in compliance would have to cease.

 

Requested Action of the Board of Supervisors:

 

Hold a public hearing and postpone action on this application.

 

Financial Impact Analysis:

 

None was required for this application.

 

Planning Commission Recommendation:

 

After conducting several public hearings, the Planning Commission has recommended that the Board of Supervisors consider approval of the Rezoning, REZN04-CR-005, only if, prior to the vote of the Board, the applicant conducts the appropriate floodplain study demonstrating that the proposed industrial use is suitable on the subject property and that a proffer statement is provided to limit the use to the lawfully permissible existing uses allowed in the zoning district as well as to proffer out some of the heavier industrial uses.

 

Land Area, Location and Zoning:    

 

The property is located in Bealeton at 5333 Ritchie Road (Route 644).  The property is zoned Rural Agricultural (RA).  A map of the property is shown below.

 

 

                               

                         

 

 

Neighboring Zoning/Land Use:

 

The property is surrounded on three sides by Agricultural (RA) zoning and is next to a parcel zoned Industrial General (I-2).  The prevailing land use is farming.  One of the adjacent RA parcels is in the Southern Fauquier Agricultural and Forestal District.  The property is entirely within the FEMA 100-year floodplain.

 

Staff Analysis:

Staff and the 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 in attachments to this memo as well as the staff report prepared for the June Planning Commission meeting.

 

Zoning and Land Use

 

The property is currently zoned RA where the predominantly uses are agriculture. The majority of the current uses are not consistent with this zoning category.  The only uses that would be consistent with the RA zoning would be the agricultural-based businesses that remain.  The property is next to a site that has been rezoned to I-2.  Additionally, the entire site is within the FEMA 100-year floodplain.

 

Code Requirements

 

Since the site is within the FEMA 100-year floodplain, the uses there must be consistent with the Fauquier County Zoning Ordinance Section 5-2300, Category 23 Floodplain Uses and the general standards set forth for those uses:

 

PART 23                                 5-2300             CATEGORY 23 FLOODPLAIN USES

 

In addition to the general standards as set forth in Section 006 above, the following standards shall apply:

 

5-2301                         Standards for All Category 23 Uses

 

1.    No such use shall cause an increase in the level of flooding or velocity of flood waters.

 

2.    No such use shall create a potential hazard of debris subject to movement by flood waters which might cause damage downstream.

 

3.    The John Marshall Soil and Water Conservation District shall be given the opportunity to comment on such uses.

 

4.    The applicant shall have obtained and shall present evidence attesting any applicable approvals by State and Federal authorities concerning such a use.

 

5.    Materials and equipment stored in the floodplain shall not be buoyant, flammable or explosive, and shall not be subject to major damage by flooding or such materials and equipment must be firmly anchored to prevent flotation or movement and/or can be readily removed from the area within the time available after flood warning.

 

6.    Special exceptions shall only be issued after the Board of Supervisors has determined that the granting of such will not result in (a) unacceptable or prohibited increase in flood heights, (b) additional threats to public safety, (c) extraordinary public expense, (d) create nuisances, (e) cause fraud or victimization of the public, or (f) conflict with local law or ordinances.

 

7.    Special exceptions shall only be issued after the Board of Supervisors has determined that the special exception will be necessary to provide the applicant with reasonable use of the parcel of land in question, taken as a whole.

 

8.    The Zoning Administrator shall notify the applicant for a special exception in writing, at the time of filing, that the issuance of a special exception to construct a structure below the one hundred (100) year flood elevation (a) will increase risks to life and property, and (b) will result in increased premium rates for flood insurance.

 

9.    A record of the above notification as well as all special exception actions, including justification for their issuance, shall be maintained and any special exceptions which are issued shall be noted in the annual report submitted to the Federal Insurance Administrator.

 

 

 

Summary and Recommendations:

 

Staff recommends the Board of Supervisors postpone action of this item to allow the applicant time to conduct a FEMA LOMR floodplain study and to create a series of proffered conditions including timelines to reach compliance.  The applicant must commit to the proffer and timeline otherwise, the uses that are in violation will have to cease immediately.  The basis for the recommendation is that the rezoning cannot be afforded to the property unless it is out of the floodplain.  Additionally, the zoning violations need to be resolved.

 

The ultimate goal of the requested action is to bring this property into compliance with the County, state and federal requirements.  There are many procedural steps that the applicant must initiate and complete, along with the request for Rezoning.  Examples are Special Permits, site plan requirements, and building permits, as well as bringing structures, not grandfathered, into compliance with the FEMA 100-year floodplain and County floodplain regulations.

 

Although the implication of deferring this action would mean that the applicant would continue to operate the site in continued violation of the Zoning Ordinance, with the Planning Commission and staff’s request for preparation of a floodplain study and a proffer statement, it is reasonable that the applicant be allowed adequate time to prepare that document.  The applicant must hire a licensed civil engineer and conduct a floodplain study for the LOMR.  Staff can provide guidance to the applicant for preparation of a proffer statement.

 

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

1.      Fauquier County Department of Community Development

2.      Virginia Department of Health

3.      Virginia Department of Environmental Quality

 

 

 

ATTACHMENTS:

 

  1. Special Exception Plat
  2. Letter of Justification
  3. Comments from Fauquier County Engineer
  4. Comments from Fauquier County Zoning Office
  5. Virginia Department of Transportation
  6. Planning Commission Staff Report 6/21/04