Board of Supervisors Meeting Date:

AGT, LLC, Owner

Three Flags Associates, Applicant


December 13, 2007

Staff Lead:
Melissa Dargis, Assistant Chief of Planning

Community Development


Magisterial District:
Lee District




Special Exception Amendment SEAM07-LE-004; Special Permit SPPT07-LE-015; and Special Exception Amendment SEAM07-LE-007 - Ashley Glen Daycare Center (Edgewood East Section D), Lee District


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 would allow for the creation of 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.  Additionally, the applicant is seeking to install an elevated boardwalk on piers, 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:

Conduct a public hearing on the proposed Special Exception Amendments and Special Permit and consider adoption of one of the attached resolutions; one for denial and one for approval.  The resolution of approval contains conditions based on staff, referral agency, the Lee District Planning Commissioner’s, and the Lee District Board of Supervisor’s comments.


Planning Commission Recommendation:

On September 27, 2007, the Planning Commission held a public hearing on this item and recommended denial with a vote of 3-2.  An attached resolution of denial has been prepared and is based on the Planning Commission’s recommendation.

Some of the reasons for denial included: 1) The request for reduction of common open space is in conflict with every plan and plat approved by the county, including the final plat for the phase recorded in the land records.  Only the covenants recorded with the phase did not specify that this land would be open space, in conflict with the recorded plan; 2) The Homeowners Association (HOA) has been incorporated with the State Corporation Commission, but it has not been turned over to the residents of the development by the developer.  3) Residents spoke during hearings with concern that the storm water from this site would affect their properties.


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.

Zoning Office

The Zoning Office indicates that its comment letter from the August 30th Planning Commission meeting still stands.  The proposed conditions (in bold) have been incorporated  into the Special Exception conditions:

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.


Based on the September 2007 submittal, the following Engineering comments can be addressed at site plan or construction plan.

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 Engineering comments (dated June 6, 2007) 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 is necessary.

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.

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.

Homeowners’ Association & Open Space:

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, the HOA has not been turned over to the residents of the development by the developer, nor has the development’s open space. 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 individual property owners in the project.

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. 

Summary and Recommendations:

The applicant has met with Supervisor Stribling and staff to discuss the project and work out refinements.  The applicant has, per Planning Commission and Supervisor Stribling’s request, mowed the common areas, restored the trails to as-built condition and maintained the tot lot. 

Staff notes that since the original submittal of this application, the applicant has amended the proposal to include additional parking and to reduce the number of employees so that the intensity of the use now appears proportional to the site.  The site also meets the landscaping requirements.  However, the site continues to be tightly constrained and 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.


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

Fauquier County Department of Community Development
Edgewood East Homeowners



1.            September 6, 2007 Project Submittal

2.            August 30, 2007 Referral Agency Comments

3.            Edgewood East Section C, D & E Recreation Amenities & Open Space Exhibit


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