The staff presentation, applicant presentation, public hearing and board discussion all occurred as planned but things changed when county attorney Fred Payne gave legal advice, three hours into the hearing.
Payne discussed the legal requirement special use permits must show that passage does not adversely effect the surrounding properties. Payne raised concerns about water table impact, traffic, phasing and proffers offered.
One of the major points Payne raised was new proffers offered by the applicant, Hotel Capital LLC, included only using community wells in the first phase. In order to start the second and third phases, the development would not use onsite ground water.
Payne suggested if the first phase of the development was complete but public water wasn’t complete, the applicant could request a change of rezoning because the land had restrictions that left it unusable. If the developer sued to remove the zoning restriction, it would most likely win. A court victory would remove any zoning from the property leaving it all by-right.
Supervisors chairman Shaun Kenney (Columbia District) was upset the statutory concern was not brought up earlier in the process. Payne and county administrator Steve Nichols relayed it was discussed at the Planning Commission level but perhaps not specifically stated as a legal concern.
Joe Chesser (Rivanna District) is the supervisor representative at the Planning Commission. Kenney asked him if he knew of the legal concern.
“No one talked about the statutory concern,” said Chesser. Chesser did mention concerns the development did not benefit the county were raised but never as a matter of law.
Chesser said, “This spells something out a lot differently.”
Planning director Allyson Finchum was asked if she relayed this specific concern to the applicant including the legal aspect. She said in her 25 years of planning experience she did not understand the importance of the legal requirement.
“I, myself, did not understand the seriousness of this,” said Finchum.
The agent for the applicant, Keith Smith, did not know of the requirement either. He requested the supervisors defer the application for 30 days so his client could supply more documents to the county.
The supervisors instead voted 4-1 to send it back through the Planning Commission. Mozell Booker (Fork Union District) dissented.
The application has changed since the Planning Commission recommended denying the application.
The latest proffers include only the first phase would use onsite ground water. The cash proffers were based on the latest Capital Improvement Plan of $48.5 million. The total cash proffer per unit was $4,800.
All amenities were proffered to be completed or in construction prior to the submittal of the second and third phases’ site plan. The commercial property of phase one will also be complete before the submittal of the second and third phases’ site plan.
The development plan has also decreased from 1,180 units to 952 units. The plan also has 180,000 square feet of commercial. Smith said half of the commercial space already has letters of intent to lease.
Still, the changes didn’t sway the public. Over 20 speakers from the public spoke during the hearing portion. Every single one was against the proposal.
Even the streamline version of remanding the application through Planning Commission and then back to the Board of Supervisors extends the application two or three months.