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13CW0146CASE MANAGER: Scott Flanigan .:: i3 i'f~L_ ~': xi ~rw . t,.. ~ . r;..~ ~~~ December 12, 2012 BS STAFF' S REQUEST ANALYSIS AND RECOMMENDATION 13CW0146 Branch Tract -Henry D. Moore Bermuda Magisterial District South line of Carver Heights Drive REQUEST: An exception to the requirements of Section 19-232 of the Zoning Ordinance as it relates to the Chesapeake Bay Preservation Act (CBPA). Specifically, the applicant is requesting to encroach into 0.938 acre of an existing Resource Protection Area (RPA) to perform grading and construction related to buildings, parking, necessary utilities 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 four (4) 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 CBPA. 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. Providing a FIRST CHOICE community through excellence in public service CONDITIONS 1. The mitigation measures outlined in the document titled Branch Tract -Henry D. Moore -Water Quality Impact Assessment Chesterfield County, Virginia, prepared by Townes Consulting, Engineers, Planners and Land Surveyors; dated November 27, 2012 shall be incorporated and implemented during the plan review process. (EE) 2. The Department of Environmental Engineering may approve alternative mitigation measures if it is determined that such alternatives will not increase impacts to the Resource Protection Area (RPA) or downstream water bodies. (EE) 3. A fifty (50) foot Riparian Protection Area shall be maintained along the entire south side of the RPA for parcel 781-650-3083 as shown on Exhibit A in the staff report. No timbering shall be allowed in the Riparian Protection Area except as approved by Chesterfield County for the removal of dead or diseased trees. Destruction or alteration of the Riparian Protection Area, other than those authorized by Chesterfield County, shall be prohibited. No storage of materials, grading or construction for any structures or other improvements shall be allowed within the Riparian Protection Area. However, boardwalks, wildlife management structures, observation decks and one (1) informative sign may be placed within 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 is subject to prior written approval by Chesterfield County. (EE and P) 4. 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: Branch Tract project is located at 5709 Carver Heights Drive, which drains to Piney Branch Creek, part of the Swift Creek drainage basin. The encroachment request is located on parcel Tax ID 781-650-3083 per attached map. Existing Zoning: C-3 and A Size: 27.75 acres 2 13CW0146-DEC12-BOS-RPT Existing Land Use: The property fronting along Carver Heights Drive is currently vacant. Condition of Resource Protection Area (RPAI: A wetland system on the parcel provides for the headwaters of an unnamed tributary and bisects the front portion of the subject property along Carver Heights Drive from the larger agricultural zoned portion of the tract at the rear of the property. The area of RPA buffer on the subject property, approximately 3.78 acres, is located along parts of the northern boundaries of the parcel adjacent to all jurisdictional features associated with the unnamed tributary to Piney Branch Creek (Exhibit A). The RPA buffer is in good condition consisting of mature mixed hardwood forest and approximately 1.94 acres of jurisdictional waters and forested wetlands. Area of Probosed Resource Protection Area Encroachment: The total area of the encroachment for this proposed development will impact approximately 87,251 square feet (2 acres) of existing forested buffer (Exhibit A). The area of the encroachment as part of this formal exception request, within the seaward fifty (50) feet of the limits of the RPA, may impact approximately 40,822 square feet (0.938 acre) of RPA buffer. Of the 40,822 square feet, approximately 28,853 square feet will be permanently disturbed as a result of grading and construction related to the proposed parking lot and infrastructure improvements. (Exhibit A) REQUEST Approximately 3.75 acres of the northern portion of the subject property was zoned for Commercial (C-3) uses in 1953. The remainder of the subject property has remained Agricultural (A) zoned as verified by historical zoning maps. In 2007, the applicant expressed interest in purchasing the parcel which at the time was held in litigation. During this time the applicant and his consultant visited the parcel and inspected it for channels exhibiting perennial flow resulting in the need fora 100 foot buffer as required by the CBPA. During the inspection no perennial flowing waterbodies were noted. Once the litigation was concluded the applicant preceded with the purchase the property and took ownership on November 8, 2011. The next month, the applicant held a site developer meeting with county staff in order to discuss improvements to the three (3) acre commercial portion of this parcel fronting Carver Heights Drive for purpose of constructing a Worship Center. During this meeting the applicant was informed of the need to submit a field determination in order to designate the limits of the RPA. The County adopted CBPA requirements in October 1990. As a result of these requirements the limits of the RPA were overlaid on Piney Branch Creek on the adjacent parcel located approximately 1500 feet downstream of the subject property. On November 25, 2009 under requirements of the Virginia Department of Conservation and Recreation, the County established guidance that required a 100 foot buffer be established adjacent to RPA wetland features. On June 4, 2012 county staff confirmed that stream reaches originating on the parcel did not exhibit 3 13CW0146-DEC12-BOS-RPT characteristics of a channel having perennial flow as determined by the applicant's consultant, however the limits of RPA would extend into the project area of the parcel as result of the County's established guidance of November 25, 2009 with respect to connected and contiguous wetlands associated with Piney Branch Creek located over 1500 feet downstream of the property. On October 23, 2012 the applicant submitted a request in order to obtain relief through the Chesapeake Bay Preservation Act exception process administered by the Environmental Engineering Department Water Quality Section. As a result of this submittal, 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 that portions of the site improvements and stormwater management facility within this development will encroach into RPA if this request is approved. (Note: The applicant proposes to clear for site layout, buildings, stormwater management facility and road network.) Encroachments to the RPA within parcels recorded prior to October 1, 1989 may be approved through an administrative process provided the request for encroachment pertains only to the first fifty (50) feet or landward fifty (50) feet of the RPA. In this request, the encroachment will also occur within seaward fifty (50) feet of the RPA therefore, requiring approval of this area of encroachment from the Board of Supervisors. The applicant asserts that implementation of the limits of Chesapeake Bay Preservation Areas, which include RPA and in this case connected and contiguous wetlands and vegetative buffer associated with Piney Branch a tributary to Swift Creek, would preclude the use of the existing portion of the parcel for the proposed development as originally planned. The applicant proposes to prepare the site for the development of a church and associated parking area. ANALYSIS To approve a CBPA 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 order to provide continuity with existing improvements and meet the development constraints associated with roadway standards the areas selected for the encroachment provided the least disturbance of existing vegetation while still meeting the project goals. Additionally, the applicant has requested for relief or made modifications to both building and parking lot shape and orientation which have reduced the area encroachments into the buffer area. 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 lot was recorded and zoned prior to Chesapeake Bay Preservation Act requirements. The proposed request for encroachment into RPA buffer area is a result of site constraints 4 13CW0146-DEC12-BOS-RPT (i.e. size of unencumbered project, type of development, existing road network, and existing jurisdictional features), and the applicant's desire to allow for improvements similar to that which was previously intended prior to purchasing the property and the County's established guidance of November 25, 2009 with respect to connected and contiguous wetlands. The area of the parcel zoned commercial along Carver Heights Drive is 3.87 acres and of that, only 0.9 acre exists outside of the RPA. 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 and quantity improvements by the implementation of stormwater treatment facilities, reduction of planned buffer encroachments and the proposal of mitigation to include 10,641 square feet (0.244 acre) riparian area as shown on Exhibit A. Finding 4. The exception request is not based upon conditions or circumstances that are self-created or self-imposed. In 1953, a portion of the parcel fronting the Carver Heights Drive was rezoned for commercial community business. The expectation was that this area would later be use for commercial development. The County adopted the Chesapeake Bay Preservation Act in 1990 and at that time the limits of the RPA did not extend onto the project area. County guidance effective September 23, 2009 for determining connected and contiguous wetlands with respect to perennial flow determinations were modified and as a result of the guidance available, areas for the proposed improvements became seriously constrained by the RPA buffer area, requiring formal approval for the proposed encroachments. Any development fitting for this area of the parcel would impact the RPA and therefore require the need for encroachment. Finding S. 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, reduction in buffer encroachment and preservation of additional riparian buffer will be provided in order for the protection of the remaining environmental resources. Proper best management practices will be employed to ensure treatment and proper disposal of storm water discharges, as a result the proposed and future development within the project area 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. 5 13CW0146-DEC12-BOS-RPT The development of the commercially zoned portion of the property has been significantly impacted as the result of the limits of the RPA from the county's established guidance of November 25, 2009 with respect to connected and contiguous wetlands. The newly formed buffer area has resulted in a limited area in which to construct improvements greatly reducing the ability to use this area for any planned commercial development requiring more than one (1) acre for development. 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 2009 limits of the RPA results in the inability for the applicant to use this area as originally zoned in 1953 for commercial community business use development. The applicant proposes to locate the project on the parcel such that development will comply with zoning, building setbacks and development standards. The applicant can still maintain a reasonable use while reducing the impact to the riparian area along the wetlands associated with an unnamed tributary to Piney Branch Creek. The request will also result in an additional 10,641 square feet (0.244 acre) of protected riparian buffer with the dedication of forested buffer areas adjacent to existing wetlands on the remaining portion of the parcel as shown on Exhibit A. All mitigation measures are outlined in the Branch Tract WQIA, currently on file in the Chesterfield County Environmental Engineering Department, and shall be incorporated and implemented during the plan review process. Staff recommends that the Board of Supervisors approve this request subject to the four (4) conditions included in this report. 13CW0146-DEC12-BOS-RPT 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 Henry D. Moore Branch Tract 5709 Carver Heights Drive Tax ID # 781-650-3083 The following discussion addresses exceptions from Section 19-235 (b)(1) of the Chesterfield County Code. Each exception is addressed for the proposed Resource Protection Area impacts. 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: 1. The requested exception is the minimum necessary to afford relief: This exception request is the minimum necessary to meet County development on this property. The property was recorded in 1907, which is prior to the implementation of the Chesapeake Bay Preservation Act. The requested exception is the minimum necessary to afford relief based on the applicants following design constraints: a. The access point along Carver Heights Drive is a fixed location based upon VDOT standards. VDOT access management standards dictate that the entrance road be located in the location shown on the plan due to the functional classification of Carver Heights Drive. The developer attempted to have the classification changed to be able to locate the roadway in a different location to reduce the impact. This request was not supported by Chesterfield Transportation Department (CDOT). b. The layout was modified to change the parking lot geometry to be more parallel to the wetlands to minimize the impact to the RPA c. The developer is requesting is requested relief to the from setback along Carver Heights Drive to move the building and parking areas as far away from the RPA as possible. 2. Granting the exception will not confer upon the applicant any special privileges that are denied to other property owners 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 within the area. This property was recorded in 1907 before any of the Chesapeake Bay Preservation Act requirements were established and is located on Carver Heights Drive. The properties immediately upstream and downstream of this project were developed under CBPA criteria prior to pereniality determinations and consequently, did not have RPAs 13CW0146-DEC12-BOS-RPT established off of the same wetland system that runs through this property. Finally, the size and configuration of the property, in relation to Carver Heights Drive, adjacent properties, and the RPA make the development of this property a unique case compared to other cases. The total property is approximately 27.75 acres, however, only 3.87 acres is zoned commercial and of that, only 0.90 acres is outside existing wetlands, RPA, setbacks, etc. 3. The exception request is in harmony with the purpose and intent of the Chesapeake Bay Preservation requirements of the Zoning Ordinance: The proposed development will not result in a substantial detriment to water quality. There is a substantial amount of property that could be associated with this project. Water quality compliance could be achieved by recording a temporary reduced impervious easement to meet the criteria now and defer water quality compliance to future development. Because a substantial amount of the RPA is being impacted with this phase of the development, the owner has chosen to provide water quality with this phase of the project to mitigate for the reduction in RPA buffer. 4. The proposed exception is not based upon conditions or circumstances that are self-created or self-imposed: The developer did not subdivide the parcel and it was recorded prior to Chesapeake Bay Preservation Act requirements; therefore, the conditions of development adjacent to RPAs are not self imposed. Furthermore, an impact to the RPA would occur regardless of the current plan to be able to access other useable portions of the property. Finally, VDOT access management standards dictate that the entrance road be located in the location shown on the plan due to the functional classification of Carver Heights Drive. The developer attempted to have the classification changed to be able to locate the roadway in a different location to reduce the impact. This request was not supported by Chesterfield Transportation Department (CDOT). 5. Reasonable and appropriate conditions have been imposed that will prevent the allowed activity from causing a degradation of water quality The primary purpose of the RPA buffer is to provide some removal of nutrients and sediment from entering the wetlands and other water bodies. The developer is providing water quality treatment with this phase of the project to offset and mitigate for the immediate reduction in RPA. In addition, erosion control measures will include safety fence, diversion dikes, silt fence, and super silt fence along the RPA. Sediment Traps will be constructed to control sediment on the site. The parking lot has been designed with curb and gutter to ensure that sediment and post-construction runoff will be diverted to the stormwater management facility. Furthermore, stormwater management facility outfalls will have outlet protection and energy dissipaters as necessary to reduce the velocity of the stormwater discharge to prevent potential impacts downstream. 6. The request is being made because of the particular physical surroundings, use, shape or tobo~raphical 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 request is being made based on a hardship to the owner due to the size and shape of the buildable area outside the RPA and wetlands. Without the impacts shown on the plan, the site would not be 13CW0146-DEC12-BOS-RPT buildable in the C-3 zoned property. The location of the wetlands and RPA onsite added to the fact that C-3 zoned portion of the property is located along Carver Heights Drive was zoned prior to the RPA regulations. 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