april 25, 2012 bs bs time remaining: and recommendation

Providing a FIRST CHOICE community through excellence in public service

CASE MANAGER: Scott Flanigan

April 25, 2012 BS

STAFF’S AND

RECOMMENDATION

12RW0147

Brookcreek Crossing – Twin Creek Properties, LLC

Midlothian Magisterial District North line of Wylderose Avenue and south of North Otterdale Road

REQUEST: An exception to the requirements of Section 19-232 of the Zoning Ordinance as it

relates to the Chesapeake Bay Preservation Act. Specifically, the applicant is requesting to encroach into 0.18 acres of an existing Resource Protection Area (RPA) to perform grading and construction related to buildings and a stormwater management facility.

PLANNING COMMISSION RECOMMENDATION

Under the Zoning Ordinance, a Chesapeake Bay Preservation Act exception request goes directly to the Board of Supervisors without a Planning Commission recommendation.

STAFF RECOMMENDATION Recommend approval with the three (3) conditions below for the following reasons:

A. A Water Quality Impact Assessment (WQIA) has been approved by the

Environmental Engineering Department. B. The proposed development is consistent with the Chesapeake Bay Preservation

Act. C. The six (6) findings, as required by Section 19-235 (b)(1) have been satisfied. Note: Approval of this request by the Board of Supervisors constitutes the Board’s determination that the six (6) findings have been satisfied.

CONDITIONS

1. The mitigation measures outlined in the document titled Brook Creek Crossing Water Quality Impact Assessment Chesterfield County, Virginia, prepared by Balzer and Associates, Inc; dated February 8, 2012 shall be incorporated and implemented during the plan review process. (EE)

BS Time Remaining: 365 days

12RW0147-APR25-BOS-RPT 2

2. The Department of Environmental Engineering may approve alternative

mitigation measures if it is determined that such alternatives will not increase impacts to the RPA or downstream water bodies. (EE)

3. In conjunction with the submittal of construction plans for Brookcreek Crossing

Phase III an amended plat shall be submitted to the Planning Department (per Section 17-35 of the Subdivision Ordinance) for Brookcreek Crossing Section “A”. The amended plat shall depict the addition of the riparian buffer as noted in the approved WQIA. The record plat shall bear a note: “Destruction or alteration of the Riparian Protection Area, other than those authorized by Chesterfield County, shall be prohibited. Construction, maintenance or placement of any structures or fills including but not limited to buildings, mobile homes, fences and signs shall be prohibited. However, boardwalks, wildlife management structures, observations decks and one informative sign may be placed in the Riparian Protection Area provided any such structure does not impede the natural movement of water and preserves the natural contour of the ground and will be subject to prior written approval by Chesterfield County.” (EE) (P)

(NOTE: Approval of this exception is for encroachment into the RPA buffer only and does not guarantee development of the site as explicitly proposed in the WQIA referenced in Condition 1 above. Development of the site is subject to all ordinance requirements, review processes, and/or other requirements currently adopted at the time of plans review.)

GENERAL INFORMATION Location:

Brookcreek Crossing Phase III subdivision is located at 14700 Bridge Creek Drive, which drains to Michaux Creek part of the James River drainage basin. The encroachment request is located on parcel Tax ID 719-712-7932.

Existing Zoning: O-2 & R-9 Size: 16.39 acres Existing Land Use:

Currently Phase I Sections A & B are recorded and under construction. The area considered Phase III is currently forested having only the connector road constructed.


Condition of Resource Protection Area:

The area of RPA buffer on the subject site, 4.30 acres, is located along parts of the western, northern, and eastern boundaries of the project area, adjacent to all jurisdictional features associated with the tributary to Michaux Creek (Exhibit A). The character of the RPA consists of relativity undisturbed mature forested buffer and wetlands.

Area of Proposed Resource Protection Area Encroachment:

The additional RPA as a result of the request for tentative approval (08TS0111) is approximately 4.30 acres of which 4.12 acres of forested and wetland RPA will remain in a natural condition. The area of the encroachment requested for this proposal may impact approximately 0.18 acres of RPA buffer existing as un-disturbed forested areas. Of the 0.18 acres (7,942 square feet), approximately 1,881 square feet will be permanently disturbed as a result of grading and construction related to buildings and other lot improvements with the remaining 6,061 square feet converted during construction the stormwater management facility. The areas of RPA converted will be maintained in a natural or landscaped condition still providing for rainwater infiltration and resource buffering. (Exhibit A)

REQUEST On September 23, 1987 the Board of Supervisors approved rezoning request Case 87SN064 with Conditional Use Planned Development for a mixture of residential and non-residential uses, to include traditional homes, townhouses and corporate office or light industrial uses. The project known as Brookcreek Crossing received schematic plan approval for 80.66 acres on August 17, 2004 (04PS0397). Tentative subdivision (04TS0385) approval, which included the property subsequently designated as Phase III, was received on November 23, 2004. This tentative included the limits of the RPA boundaries on the property at that time. On November 23, 2004 the Board of Supervisors amended the Zoning Ordinance in accordance with the mandate by the Commonwealth of Virginia under the Chesapeake Bay Preservation Act regulations requiring, among other things, that site-specific refinements of the RPA boundaries with respect to the determination of water bodies having perennial flow be conducted as part of the plan review process. The Chesapeake Bay Preservation Act requirements of the Zoning Ordinance specify that a RPA be established adjacent to perennial water bodies, to include connected and contiguous wetlands. The RPA shall consist of an undisturbed 100 foot natural vegetative buffer area. On December 8, 2011 staff confirmed that stream channels on the property had perennial flow and therefore, the limits of RPA would extend into the project area of the parcel. The original tentative subdivision, approved in 2004 (04TS0385) was approved prior to the adoption of the site-specific requirements and therefore did not identify these areas and did not preclude development within these areas with respect to the requirements at that time. In a letter from the Director of Planning, dated December 28, 2011, the project Brookcreek Phase III was deemed vested with respect to the November 23, 2004 amendments of the Zoning Ordinance and therefore, must comply with the Chesapeake Bay Act requirements “to the maximum extent feasible” provided there is no


loss of density and as such the limits of the RPA cannot be reduced to less than twenty-five (25) feet. On June 29, 2007 a tentative application (08TS0111) was submitted for review. This tentative included a portion of Phase I of the original tentative approved on November 23, 2004. On January 6, 2012 the tentative received approval subject to the developer obtaining relief through the Exception (WQIA) process administered by the Environmental Engineering Department Water Quality Section. As a result of this resubmittal, the applicant has requested an exception for potential impacts to lands within designated Chesapeake Bay Preservation Areas and downstream water bodies (Exhibit A). This means the portions of some of the lot improvements and stormwater management facility within that development will encroach into the remaining twenty-five (25) foot RPA if this request is approved. (Note: The applicant proposes to clear for lot layout and stormwater treatment infrastructure only. There will be no permanent structures within the twenty-five (25) foot RPA.) The applicant asserts that implementation of the newer required limits of Chesapeake Bay Preservation Areas, would require a reduction in the number of lots and also affect the current approved layout and placement of the stormwater management facility.

ANALYSIS To approve a Chesapeake Bay Preservation Act exception request, the Board of Supervisors must determine that the proposed development satisfies the six (6) findings, outlined below, as required by Section 19-235 (b)(1). The following findings for granting such an exception are:

Finding 1. The requested exception is the minimum necessary to afford relief.

In a letter from the Director of Planning, it was determined that the applicant has a vested right to develop this project pursuant to the requirements in effect prior to the County Board of Supervisors’ 2004 amendments to the Chesapeake Bay Preservation Ordinance. The determination allows for encroachments within the first seventy-five (75) feet of the 100 foot buffer area of the RPA provided that this area is “avoided to the maximum extent feasible” without the loss of allowable density or vested facilities. The building locations were adjusted in order to reduce encroachments within the area of new RPA. In order to provide continuity with existing improvements, namely the already approved road network, the areas selected for the encroachment provided the least disturbance of the vegetation while utilizing existing encroachments and still meeting the project goals. The encroachment within the remaining twenty-five (25) foot RPA buffer, as a result of grading for several lots and the stormwater management facility will impact approximately 0.18 acres of the 4.3 acres of recently delineated RPA buffer.

Finding 2. Granting the exception shall not confer any special privileges upon the applicant that are denied by this division to other property owners who are subject to its provisions and who are similarly situated.

The proposed request for encroachment into RPA buffer area is a result of site constraints (i.e. existing & recorded development, type of development (townhouses), existing road network layout, topographical features, existing permitted jurisdictional impacts), and the


applicant’s desire to allow for improvements similar to that which was previously intended as a result of the tentative subdivision submittal of June 29, 2007. (08TS0111)

Finding 3. The exception request is in harmony with the purpose and intent of this division and will not result in a substantial detriment to water quality.

Staff is satisfied in that the applicant has agreed to address water quality protection during all phases of development. The project provides for water quality improvements by the implementation of stormwater treatment facilities, reduction of planned buffer encroachments and the proposal of mitigation to include 0.86 acres riparian area as shown on Exhibit B.

Finding 4. The exception request is not based upon conditions or circumstances that are self-created or self-imposed.

In 2004, a site-specific requirement for determining perennial flow was adopted. The property was determined vested in 2011 with respect to the 2004 amendments. A vesting determination requires that encroachments within the 100 foot RPA buffer is avoided to “the maximum extent feasible,” encroachments within the landward seventy-five (75) feet may receive administrative approval should it be determined that compliance would result in the loss of allowable density or vested facilities. The previously submitted tentative subdivision plan became constrained by the additional RPA buffer area within the remaining twenty-five (25) feet and therefore, requiring formal approval for the proposed encroachments within these areas.

Finding 5. Reasonable and appropriate conditions are imposed, as warranted, that will ensure that the permitted activity will not cause a degradation of water quality.

The applicant will employ erosion and sediment control standards during the construction process. Protection of the remaining buffer as well as reduction in buffer encroachment over the previously submitted tentative plan and preservation of additional riparian buffer will be provided in order for the protection of the remaining environmental resources on the adjacent Phase I section of Brookcreek Crossing subdivision. Proper best management practices will be employed to ensure treatment and proper disposal of storm water discharges as a result the proposed development.

Finding 6. The request is being made because of the particular physical surroundings, use, shape or topographical conditions of the specific property involved or property adjacent to or within 100 feet of the subject property, or a particular hardship to the owner will occur, as distinguished from a mere inconvenience, if the strict letter of this division is carried out.

The existing road network configuration, adjacent developments, and prior plan submittals have resulted in a limited area in which to construct improvements outside of the newly formed buffer area. The request is based on the applicant’s wishes to continue with the existing plan layout recently approved which reflected the anticipated development prior to the 2004 adoption of the site–specific refinements of the limits of


the RPA. Therefore, any proposed improvement of this nature would most likely result in an encroachment within the RPA buffer area.

The applicant addressed these findings as part of the application process. See Attachment A.

CONCLUSION The applicant has requested an exception for potential impacts to lands within designated Chesapeake Bay Preservation Areas, which include RPAs, as shown on Exhibit A. Implementation of the limits of the RPA results in the inability for the applicant to use this area as originally approved through the tentative subdivision process back in 2004. In 2007 a tentative application (08TS0111) was submitted for review. As a result of the most recent resubmittal the applicant was required to submit a perennial flow determination and it was discovered that RPA extended onto the property, which then triggered this application request to encroach within the twenty-five (25) foot RPA buffer. The proposed encroachment into the twenty-five (25) foot buffer reduced from 100 feet as a result of the vesting determination, dated December 28, 2011 from the Director of Planning, would permit the impacts within areas previously available for development through the resubmitted application (08TS0111). Although the proposed encroachments may impact up to 0.18 acres of vegetative RPA, there will be no structural impacts. The request will also result in an additional 0.86 acres of protected riparian buffer with the dedication of forested buffer areas adjacent to existing wetlands in Section A of the Brookcreek Crossing Subdivision as shown on Exhibit B. All mitigation measures are outlined in the document titled Brook Creek Crossing Water Quality Impact Assessment Chesterfield County, Virginia, prepared by Balzer and Associates, Inc; dated February 8, 2012 and shall be incorporated and implemented during the plan review process. Staff recommends that the Board of Supervisors approve this request subject to the three (3) conditions and note included in this report.


ATTACHMENT – A Applicant’s response to the six (6) findings as required by Section 19-235 (b)(1).

REQUEST FOR AN EXCEPTION TO THE REQUIREMENTS

OF THE ZONING ORDINANCE

Twin Creek Properties, LLC Brook Creek Crossing

14700 Bridge Creek Drive Tax ID # 719-712-7932

The following discussion addresses the exemptions and exceptions from Section 19-235 of the Chesterfield County Code. Each exception is addressed for the proposed Resource Protection Area impacts at the Brook Creek Crossing Phase 3 Subdivision site. Section 19-235 (b) Exceptions. (1) Exceptions to the requirements of sections 19-232 and 19-233 may be granted, subject to the procedures set forth in 19-235(b)(2), provided that a finding is made that: a. The requested exception is the minimum necessary to afford relief. Yes, the area of encroachment is the minimum necessary to meet County development requirements. The site was originally designed with no RPA on the streams based on the County policy in place at the time of zoning and tentative approval. The building locations have been aligned to avoid grading within the RPA as much as possible. According to the vesting determination from Kirk Turner dated December 28, 2011 the developer “has a vested right to develop this project pursuant to the requirements in effect prior to the Board’s adoption of the zoning ordinance amendments on November 23, 2004.” The Circuit Court of Chesterfield County Case No. CL07-2743 stated that “vested properties cannot be compelled to reduce allowable density or lose vested structures”. The case also required that a perennial flow determination be required for vested properties. A perennial flow determination was obtained for the onsite channels by Chesterfield County on December 8, 2011. The channels were determined as perennial. As a result of the vesting determination, 187,398 ft² (4.30 acres) of RPA was added to the project area. The addition of the RPA as a result of the new guidance is creating hardship on the owner with respect to the allowable density. The encroachment area equals approximately 7,942 ft² (0.18 AC) of forested RPA. Encroachments requested herein include those necessary for grading and construction of the stormwater management pond. Encroachments into the RPA have been minimized at the maximum extent feasible and necessary to still develop the site without losing allowable density. b. Granting the exception shall not confer any special privileges upon the applicant that are denied by this division to other property owners who are subject to its provisions and who are similarly situated.


The exception request being made adheres to the regulations and guidance stated within the Chesapeake Bay Preservation Ordinance. The requested exception does not provide the owner any additional privileges over other owners with the area. The development was approved for a specific density and use prior to the requirements of the RPA on site as detailed in the vesting letter from December 28, 2011. The development plan is similar to other townhouse developments in density and layout and does not exceed what is needed for a project of this type. This development is located within an area with existing single family and multi-family dwellings that were mostly constructed under old RPA guidance. This project is following the same design guidelines as others with the addition of the minimum 25 foot RPA and 187,398 ft2 (4.30 acres) of RPA. c. The exception is in harmony with the purpose and intent of this division and will not result in a substantial detriment to water quality. The results of the proposed encroachments may impact up to 7,942 ft² (0.18 AC) of forested RPA. Compensation will include the addition of 37,665 ft² of deed restricted riparian area, a ratio of 4.74:1. Additionally, a 22,526 ft3 stormwater management pond will be constructed on the site. The wet pond will be designed with an aquatic bench and will provide both water quality and quantity control for the development. Stormwater will be collected and directed to the pond. d. The exception request is not based on conditions or circumstances that are self-created or self-imposed. The history of this property is explained in the vesting letter from Kirk Turner dated December 28, 2011. The letter concludes that the developer “has a vested right to develop this project pursuant to the requirements in effect prior to the Board’s adoption of the zoning ordinance amendments on November 23, 2004.” In concert with this vesting determination it is evident that the conditions are not self-created but are the result of ordinances passed after the approval of this project. As a result of the vesting determination, 187,398 ft² (4.30 acres) of RPA was added to the project area. The addition of the RPA as a result of the new guidance is creating hardship on the owner with respect to the allowable density. e. Reasonable and appropriate conditions are imposed, as warranted, that will ensure that the permitted activity will not cause a degradation of water quality. Erosion control measures will include safety fence, diversion dikes, silt fence and super silt fence along RPA. A sediment basin will be constructed in the location of the pond during construction to control sediment on the site. These measures will control sediment and help prevent sedimentation of downstream channels. Full details of the erosion and sediment control measures will be provided with the construction plans. See Finding 3. above for proposed project compensation that will positively effect onsite water quality. f. The request is being made because of the particular physical surroundings, use, shape or topographical conditions of the specific property involved or property adjacent to or within 100


feet of the subject property, or a particular hardship to the owner will occur, as distinguished from a mere inconvenience, if the strict letter of this division is carried out. Yes, the request is being made based on a hardship to the owner that occurred with the adoption of zoning ordinance amendments after approval of this project. The site was originally designed with no RPA on the streams based on the County policy in place at the time of zoning and tentative approval. The building locations have been aligned to avoid grading within the RPA as much as possible. According to the vesting determination from Kirk Turner dated December 28, 2011 the developer “has a vested right to develop this project pursuant to the requirements in effect prior to the Board’s adoption of the zoning ordinance amendments on November 23, 2004.” The Circuit Court of Chesterfield County Case No. CL07-2743 stated that “vested properties cannot be compelled to reduce allowable density or lose vested structures”. The case also required that a perennial flow determination be required for vested properties. A perennial flow determination was obtained for the onsite channels by Chesterfield County on December 8, 2012 (copy attached). The channels were determined as perennial. As a result of the vesting determination, 187,398 ft² (4.30 acres) of RPA was added to the project area. The addition of the RPA as a result of the new guidance is creating hardship on the owner with respect to the allowable density. The change in policy regarding RPA has severely limited development of this area of the parcel and therefore any proposed development on this area would most likely result on an encroachment within the RPA. These are hardships based on existing conditions, unique parcel shape, and topographic conditions that are not owner caused and the impacts are not being done for mere convenience.

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12RW0147 TWIN CREEK PROPERTIES, LLC

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Aerial photos taken in 2009

12RW0147-1 EXHIBIT A

12RW0147-2 EXHIBIT B

april 25, 2012 bs bs time remaining: and recommendation

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