Board of Supervisors Meeting Date:

AGT, LLC, Owner

Three Flags Associates, Applicant


November 8, 2007


Staff Lead:
Melissa Dargis, Assistant Chief of Planning

Community Development


Magisterial District:
Lee District




A Resolution to Approve Ashley Glen Daycare Center (Edgewood East Section D): Special Exception Amendment: SEAM07-LE-004; Special Permit: SPPT07-LE-015; and Special Exception Amendment SEAM07-LE-007


Topic Description: 

The applicant wishes to amend a previously approved Category 1 (Major Residential Development) Special Exception to create an additional .98-acre lot for a proposed pre-school/daycare facility; amend a previously approved Category 23 Special Exception to allow for fill in the FEMA 100-year floodplain; and request a Category 5 Special Permit to allow for the proposed use. 

Project Information:

The applicant seeks approval to amend the originally approved Special Exception (#24993) granted on August 22, 1986 for Edgewood East Subdivision Sections C, D & E; requests a Special Permit to allow a pre-school/daycare in a residential district; and requests a Special Exception Amendment (#2271, approved March 1996) to allow for fill in the FEMA 100-year floodplain.

SEAM07-LE-004: Category 1 (Major Residential Development) Special Exception Amendment

Edgewood East was approved and constructed as a Residential-1 (R-1) residential cluster development and the applicant is requesting to amend that original 1986 Generalized Plan.   The amendment requests the ability to create a .98-acre lot for the proposed preschool/daycare center to be located at the subdivision entrance. The lot would be formed by a Boundary Line Adjustment between the project parcel (9.14 acre lot) and an adjacent Ashley Glen subdivision open space parcel.  After the proposed daycare lot is platted, the remaining acreage would be dedicated for open space and turned over to the Homeowners Association.  With this request, the subdivision will still maintain its 50% open space requirement.

SPPT07-LE-015: Category 5 Special Permit (Pre-School/Daycare Use)

The proposed preschool/daycare would have ingress/egress from Whipkey Drive.  Parking for seventeen (17) vehicles and a designated drop-off turn-around area would be located on site.  According to the applicant, traffic would have key peak AM and PM times, but would not be concentrated.  Estimates of a two to three hour drop-off in the morning and evening hours would be the peak times as parents are dropping off or picking up children on their way to and from work.

The building proposed is a single-story structure approximately 4,500 square feet in size.  A fenced recreational area outdoors of approximately 2,500 to 3,000 square feet will be located adjacent to the building.  Twenty-five (25) students at a time could utilize the area.  Thus, students would go outdoors (for recreation) in shifts.  An earthen berm structure will be built along the road frontage of Route 28 and Whipkey Drive for both landscaping and safety for the recreational area.

The facility is proposed to accommodate a maximum of up to seventy-five (75) children aged six (6) months to eight (8) years of age.  Proposed hours of operation are 6:00 a.m. to 9:00 p.m.  Meals will not be prepared on site.  Limited kitchen facilities will be used for keeping snacks and cold drinks for the children and staff.  It is anticipated that about nine (9) staff will work at the center.

SEAM07-LE-007: Category 23 Special Exception Amendment (fill in FEMA floodplain)

The original Special Exception (#2271) was approved by the Board of Supervisors in March 1996 for three (3) road crossings through the floodplain within the Edgewood East subdivision.  The applicant notes that the proposed daycare facility and parking areas will not be located within the FEMA 100-year floodplain; however, installation of an underground sanitary sewer lateral from the proposed lot to the existing sanitary sewer main located east of the site, will be located in the open space and floodplain area.  The outlet pipe for the stormwater management/BMP facility will also traverse the floodplain so it can discharge to Craig’s Run.  Construction activities may require equipment and minor land disturbance to occur within the floodplain limits and fringes.  To meet sidewalk requirements, the applicant is seeking to install a cantilevered boardwalk above the FEMA 100-year floodplain elevation.  The applicant’s estimate of floodplain disturbance is 10,900 square feet.

Copies of a previously approved Jurisdictional Determination (JD) for the site have been submitted.  The applicant is awaiting renewal confirmation of that document from the U.S. Army Corps of Engineers (COE).  None of the proposed facilities appear to be within the wetlands identified on the original JD. 


Land Area, Location and Zoning:  

The subject property is currently zoned Residential-1 (R-1).  It is located on Whipkey Drive at the intersection of Catlett Road (Route 28).  A map of the property is shown below.





Neighboring Zoning/Land Use:

Adjoining property consists of R-1 zoned land and includes residential lots and open space with FEMA 100-year floodplain.


Action Requested of the Board of Supervisors:

The Board of Supervisors is requested to conduct a public hearing on the proposed Special Exception Amendments and Special Permit and consider adoption of the attached resolution.

Planning Commission Recommendation:

The Planning Commission forwarded this item to the Board of Supervisors with a recommendation of denial 3 to 2.  Concerns expressed by Planning Commission included the loss of open space that homeowners were expecting, water flow, and the suitability of the location for a daycare center.  However staff had prepared Special Exception conditions in consultation with the Planning Commission.  The conditions are presented in the resolution.


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.  Findings, comments, and recommendations are summarized below. The detailed responses from referral agencies are available upon request.

Staff notes that no new comments have been received since the Planning Commission hearing.  The referral agency comments below represent comments on the most recent project submittal (September 6, 2007).

Zoning Office

The Zoning Office indicates that its comment letter from the August 30th Planning Commission meeting still stands:

1.      The subject property is located within Section D of the Edgewood East project, which was approved as a Major Residential Development by Special Exception in 1986.  The applicant is seeking to amend the special exception to remove a portion of the open space tract “G1” from the Edgewood East Special Exception.  The purpose of the amendment is to free the land from all restrictions so that it can then be separated by a boundary line adjustment from the larger “G1” lot and developed independently as a day care center, which is allowed in the R-1 zoning district with approval of a special permit in accordance with Zoning Ordinance (Z.O.) Sections 3-305.1, 5-006, 5-501, and 5-503.

2.      The subject portion proposed for a Day Care Center was shown in the special exception plat and on all subsequent plan and plat approvals for Edgewood East as open space.  The special exception amendment and subsequent boundary line adjustment to create the portion proposed for the Day Care Center will result in a decrease in the common open space in the Edgewood East subdivision, but the amount provided is still proposed to meet the minimum 50% requirement.

3.      The Applicant has modified the proposed plan with this submission to address previously identified zoning issues, as follows. 

a.                   Additional landscaping has been provided, reducing the extent of the landscape waiver that will be requested in conjunction with the site plan.  The increase has been accomplished by:

            -           providing landscaping within the floodplain; and

-           providing an additional 20’ area along Route 28 for landscaping, and clarifying that some landscaping will be allowed within the easement along this street.

b.            The size of the facility has been reduced, reducing the number of projected staff to 9 employees.  Additionally, the drop-off area has been revised to provide a free movement lane and can accommodate 3-4 vehicles at any one time.  The amount of parking required by the ordinance is 2 spaces per 3 employees plus whatever space deemed necessary for the use.  The 14 spaces now proposed more adequately address parking requirements than did the prior proposal.

Proposed Special Exception/Permit Condition

The day care center shall be limited to no more than nine (9) employees.

4.                  The site continues to be tightly constrained and zoning staff is concerned that other issues may arise after final engineering during site plan approval. While approval of the special permit and special exceptions does not authorize any waivers or variations from zoning ordinance requirements, applicants often feel that the permit overrides requirements.  Staff is requesting a general condition be added to the approvals reiterating that the use must meet all zoning ordinance and other code requirements or it cannot be built.

                                                Proposed Special Exception/Permit Condition

The proposed building and layout shall be redesigned to meet all zoning ordinance and other code requirements on site, with the size of the building to be reduced if necessary to meet such requirements.

5)         In order to meet side and rear setback requirements, the submission includes part of the floodplain within the lot to be created.  The zoning ordinance does not specifically prohibit floodplain from being within a lot except for certain cluster lots, but the special exception and special permit standards include provisions for protecting water quality, addressing drainage, and protecting adjoining properties, and these standards are better addressed by keeping the floodplain off the development lot, rather than placing a portion of it on the tightly constrained lot where it will more likely be impacted.  

                                                Proposed Special Exception/Permit Condition

No floodplain shall be located on the newly created lot; all floodplain shall remain within the open space portion of the lot for Edgewood East.

6)         Impacts to the floodplain have been expanded with the current submission.  In addition to the installation of underground sanitary sewer and disturbance for construction of the building and parking areas, actual construction of permanent sidewalks is now occurring within the floodplain.  No calculations have been provided to demonstrate the proposed impacts will not affect the flood plain pursuant to Section 4-407.3 of the zoning ordinance. In addition, staff does not believe sidewalks are allowed within the floodplain, pursuant to Section 4-405.4, which only allows incursions into the floodplain for “yard areas, pervious parking and loading areas, pervious airport landing strips, etc.”  

                                                Proposed Special Exception/Permit Condition

No sidewalks or walkways shall be located within the floodplain unless they are pervious.  Prior to approval of the site plan, calculations shall be provided to demonstrate compliance with Section 4-407.3 of the Zoning Ordinance.


VDOT indicated they have no comments on the most recent submittal.


The Engineering Department has reviewed the submission and has the following comments on the September 6, 2007 submittal:

1.      The Applicant presents a sketch purportedly to show technical information. State Law and County Code provide that technical information submitted for review by a regulating agency must be prepared and presented according to accepted professional standards by a licensed professional. This submittal does not conform to this standard.

The following comments dated June 6, 2007 were not addressed in the June or July submittals or the September 6, 2007 submittal for this project and thus, are presented again (with minor addition) for consideration and response by the applicant.

1.      In view of the on-site soils (with intermittent high ground water table and potential inclusions of hydric soils) and the history of this area (wetlands are known to exist in the area), a COE Jurisdictional Determination (JD) necessary.

(Staff note: applicant is awaiting renewal of JD.)

2.      It appears that fill of this site within the 100 year floodplain elevation may be necessary to develop the site. That fill is inconsistent with County floodplain regulations. A Category 23 Special Exception must be submitted and areas of fill clearly identified along with calculations to support the request.

(Staff note: addressed in conditions.)

3.      The concept plan submitted for a system to meet SWM/BMP needs is acceptable in concept but because of site constraints is problematic. Is unlikely that it can be correctly implemented as follows:

·         The low water level orifice invert (289) is below the lowest contour shown for the receiving waters (the creek at 290).

·         Regulations for the type of system proposed require that there be at least 3 feet below the system to the ground water table (FCDSM TB No.8-4). Soils data for this site shows intermittent high ground water table and the proposed system is based on the dry pond extended detention pond concept.  The provided geotechnical report was not intended to evaluate this site.  Borings were taken along the top of newly constructed roadways, which includes mostly backfill materials used to construct and elevate the roadway according to appropriate design standards.  

·         Elevations for the SWM system are all below the 100-year floodplain elevation.

·         Test holes are necessary prior to final design.

(Informational comment.)

Staff Report:

The first issue raised by this application is whether or not to amend the existing Special Exception for Edgewood East to remove the subject area from open space.  When Edgewood East was approved by Special Exception as a major development in 1986, the subject area was shown on the concept plan for the development as open space, and it was subsequently calculated and shown as open space on every plan and plat approved by the County.  The applicant is able to request that the original project Special Exception be amended to reduce the amount of open space, because the project was slightly over the minimum 50% open space required.  Therefore, removing the area from the Special Exception does not take the project below the open space requirement.  Because it is not unusual for projects to be approved with more than the minimum amount of open space, this application raises the broader question of when it is appropriate to reduce open space after a project is built-out.

In this particular case, although the open space was shown on every plan and plat approved by the county, including the final plat for the phase recorded in the land records, the covenants recorded with the phase did not specify that this land would be open space, in conflict with the recorded plan.  In addition, although the Homeowners Association (HOA) has been incorporated with the State Corporation Commission, it has not been turned over to the residents of the development by the developer.  In addition, the development’s open space has not been turned over to the residents as there is no HOA. This is in violation of Zoning Ordinance requirements.  These factors combine to allow the applicant to apply for the amendment and utilize the open space without approval of the HOA or individual owners in the project.

Summary and Recommendations:

Since the September 26, 2007 Planning Commission meeting, the applicant has met with each of the members of the Board of Supervisors and staff to discuss the project.  A site visit was conducted with Supervisor Stribling and staff to observe the subdivision’s common area (trails, tot-lot and open space) that the applicant indicated was restored to as-built conditions, per the Planning Commission’s request.  It was noted that the trails had been raked, open areas mowed and woody vegetation had been removed from the tot-lot and dam.  However, debris stockpiles were observed along the creek and within the proposed project site; a weir structure required placement of gravel to repair an undercut area; and the pipe outlet required clearing of sediment.  The applicant has indicated that these amenities will be restored to as-built condition, as outlined in the Special Exception conditions. 

Staff discussed the following item with the applicant and the Planning Commission had recommended that the applicant take the following action prior to Board of Supervisors taking action on this proposal:

Prior to boundary line adjustment to create the requested lot, the applicant shall provide a written communication to notify homeowners of the schedule and process for the Edgewood East Homeowners Association (HOA) turnover (from the developer to the residents) for Sections C, D & E and schedule a meeting with the residents to discuss that issue.  The applicant shall provide a copy of the letter with a list of the recipients (residents) to whom it was sent to the Zoning Administrator.  (The actual; timing of the establishment of the HOA and the conveyance of the open space to the HOA will be upon recordation of the Boundary Line Adjustment to create the proposed site.)

To date, this action has not occurred.  This condition (number 8 in the resolution) resulted from input received during public hearing from Ashley Glen Sections C, D & E residents’ testimony.  It was apparent that not all residents were aware of the subdivision covenants; that an HOA was required to be established; and what the obligations of the HOA would be for the residents.

Staff notes that the proposed parking and number of employees appears adequate for the site.  The site also appears to meet the landscaping requirements.  However, the site continues to be tightly constrained and staff is concerned that other issues may arise after final engineering during site plan approval.  Approval of the special permit and special exceptions does not authorize any waivers or variations from Zoning Ordinance or other requirements.

Since the original submittal the applicant has changed its Category 23 (fill in the floodplain) Special Exception request.  It notes that activities in the floodplain will now include installation of an underground sanitary sewer lateral from the proposed lot to the existing sanitary sewer main located east of the site and an outlet pipe for the stormwater management/BMP facility will also traverse the floodplain so it can discharge to Craig’s Run.  Construction activities may require equipment and minor land disturbance to occur within the floodplain limits and fringes. 

A text amendment to the Zoning Ordinance to reduce the front yard setback for the use from 150 feet to 90 feet has been approved.  (This pertains to the setback from Route 28.)  Thus, the proposed design of the site meets Zoning Ordinance requirements.  However, staff notes the Parks and Recreation Departments comment regarding safety.  “The Department is concerned about location of “fenced recreation area” even with the attempt at mitigation using the landscaped mounds.  This seems very close to Route 28 and will be even closer after expected future widening of Route 28.”

The proposed resolution of approval contains Special Exception conditions to address the aforementioned issues, referral agency comments and refinements subsequent to the site visit  with Supervisor Stribling.


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

Fauquier County Department of Community Development
Edgewood East Homeowners


September 6, 2007 Project Submittal


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