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04SN0303-NOV22.pdf · ~ September 21, 2001 CPC January 1 g, 2005 CPC June 21, 2005 CPC f..ugust 16, 2005 CPC September 20, 2005 CPC October 1 g, 2005 CPC November 22, 2005 BS STAFF'S REQUEST ANALYSIS AND RECOMMENDATION 04SN0303 (AMENDED) Fairweather Investments, LLC and Highlands West, LLC Matoaca Magisterial District East line of Nash Road and West line of Cattail Road REQUEST: (AMENDED) Conditional Use to permit a public waste treatment facility on thirty (30) acres of a 1,430 acre parcel in a Residential (R-88) District. PROPOSED LAND USE: A public waste treatment facility is proposed to serve future area development. The documents submitted by the applicant describing the facility are attached. It should be noted that the proffered conditions do not require the system shown on the attachment. PLANNING COMMISSION RECOMMENDATION RECOMMEND APPROVAL AND ACCEPTANCE OF THE PROFFERED CONDITIONS ON PAGES 2 THROUGH 5. AYES: MESSRS. LITTON, WILSON, AND BASS NAYS: MESSRS. GECKER AND GULLEY STAFF RECOMMENDA nON Recommend denial for the following reasons: Providing a FIRST CHOICE community through excellence in public service A. While proffered conditions attempt to mitigate the risk that the County would have future responsibility or liability for the system, the proffers fail to guarantee, nor could they reasonably guarantee, that the County may not ultimately become responsible for the operation and maintenance of the facility. B. The system fails to comply with the Southern and Western Area Plan which suggests development occur on private septic systems. Further, as proffered, the use would accommodate development not in accordance with the recommendation of the Plan which suggests R-88 development. C. Proffered conditions do not appropriately mitigate the impact of the facility on the public health, safety and general welfare, and on area properties as outlined in the Zoning Ordinance. D. Any failure of the system could have an immediate and significant impact on Second Branch Creek and Lake Margaret, and the County would be forced to rely on the Department of Environmental Quality to resolve the situation. E. Approval of this request could set a precedent for similar facilities throughout that area of the County not serviced by the public utilities system. (NOTE: CONDITIONS MA Y BE IMPOSED AND THE PROPERTY OWNER MAY PROFFER CONDITIONS. THE CONDITIONS NOTED WITH "STAFF/CPC" WERE AGREED UPON BY BOTH STAFF AND THE COMMISSION. CONDITIONS WITH ONLY A "STAFF" ARE RECOMMENDED SOLELY BY STAFF. CONDITIONS WITH ONLY A "CPC" ARE ADDITIONAL CONDITIONS RECOMMENDED BY THE PLANNING COMMISSION.) PROFFERED CONDITIONS The Applicants (the "Applicants") in this zoning case, pursuant to Section 15.2-2298 of the Code of Virginia (1950 as amended) and the Zoning Ordinance of Chesterfield County, for themselves and their successors or assigns, proffer that the development of the property known as part of Chesterfield County Tax Identification Number 759-636-6377 (the "Property") under consideration will be developed according to the following conditions if, and only if, the request for Conditional Use for a waste treatment facility is granted. In the event the request is denied or approved with conditions not agreed to by the Applicants, the proffers and conditions shall immediately be null and void and of no further force or effect. If the Conditional Use is granted, these proffers and conditions will supplement and amend any and all proffers and conditions now existing on the Property. (CPC) 1. Any areas used for holding water, wastewater or sewage sludge that are not underground or fully enclosed within a structure shall be fenced to prevent unauthorized entrance. The exact location and design ofthe fencing shall be approved by the Planning Department at the time of plan review. (P) (CPC) 2. The developer of any residential lots to be served by the waste treatment 2 04SN0303-NOV22-BOS (CPC) ( CPC) (CPC) (CPC) (CPC) facility shall prepare and record restrictive covenants for such lots, which shall provide, among other things, notice to the owners of such lots that the lots shall be served by the waste treatment facility and not by the Chesterfield County wastewater treatment system, and that Chesterfield County is not responsible for the construction, operation, management, maintenance, repair or replacement ofthe waste treatment facility. Nothing contained herein shall be construed to make Chesterfield County a beneficiary of or party to any other restrictive covenants. (P) 3. Exclusive of any buffers and access drives, no more than eight (8) acres shall be used for the location of above-ground structures or improvements for the operation of the waste treatment facility. (P) 4. Treatment capacity shall be reserved in the waste treatment facility sufficient to serve a 775-student Chesterfield County public elementary school, to be constructed on land previously reserved and dedicated to Chesterfield County as part of Case 88SN0148, known as GPIN 761-645-2155, if the County shall elect to serve the school through the waste treatment facility. (S) 5. The Owner/Operator of the waste treatment facility (the "Owner/Operator") shall not be a homeowners association or similar entity and the Owner/Operator shall not use a homeowners association or similar entity as a vehicle for the collection of user fees to support the waste treatment facility. The Owner/Operator shall be regulated by the State Corporation Commission, or its successor, and shall be a company, or subsidiary thereof, that provides water and/or wastewater services in Virginia. The Owner/Operator shall not take any action to remove itself from the regulation of the State Corporation Commission. The operation, management, maintenance, repair or replacement ofthe waste treatment facility shall be the sole responsibility of the Owner/Operator. (P) 6. Any above-ground structures and improvements for operation of the waste treatment facility shall be located at least 900 feet from the ultimate rights of way of Nash and Cattail Roads. Access to above-ground structures and improvements of the waste treatment facility shall be approved by the Planning and Transportation Departments at the time of site plan review. (P &T) 7. Prior to the recordation of any lot to be served by the waste treatment facility, or prior to the issuance of any building permit on any lot previously recorded which will be served by the waste treatment facility or prior to any site plan approval for any use to be served by the waste treatment facility, whichever occurs first, the Owner/Operator shall post a letter of credit in favor of Chesterfield County, in a form acceptable to the County Attorney, to provide surety for the faithful operation of the waste treatment facility in accord with 3 04SN0303-NOV22-BOS (CPC) (CPC) (CPC) (CPC) (CPC) 8. 9. all applicable laws, ordinances and regulations. The value ofthe initial letter of credit shall be no less than the projected amount of at least two (2) years worth of operating costs of the waste treatment facility, as determined by Chesterfield County based on estimates provided by the Owner/Operator and as adjusted to account for inflation. Every three (3) years, the Owner/Operator shall furnish Chesterfield County with information demonstrating actual operating costs for the last three (3) years and an updated estimate ofprojected operating costs for the next three (3) years and the amount of the letter of credit shall be adjusted according to this information as determined by Chesterfield County. Should such letter of credit be called to pay any operation costs related to the waste treatment facility, the Owner/Operator shall restore the full value of the letter of credit within thirty (30) days. (P) Prior to final site plan approval by Chesterfield County, the Owner/Operator shall provide Chesterfield County with a comprehensive list of all state and federal permit requirements for the construction and operation of the waste treatment facility. Prior to the release of any land disturbance permit or building permit, the Owner/Operator shall provide evidence to Chesterfield County that all permits required prior to construction have been obtained. Prior to issuance of a certificate of occupancy, the Owner/Operator shall provide evidence to Chesterfield County that all permits required prior to operation have been obtained. Once the waste treatment facility is in operation, the Owner/Operator shall provide Chesterfield County with evidence that all required permits have been obtained. (WQ) The Owner/Operator shall have a qualified employee present at the waste treatment facility daily for a minimum of eight (8) hours. The employee shall be certified, as applicable, in accordance with the regulations of the Virginia Department of Environmental Quality ("DEQ") and any other regulatory authority with jurisdiction over the waste treatment facility. (WQ) 10. No areas for holding water, wastewater or sewage sludge, roads, drives or buildings associated with the waste treatment facility, to include construction of such facilities, shall be located in Resource Protection Areas ("RP As"). Transmission pipes and/or collection lines may be located in RP As. (EE) 11. A 300 foot setback shall be provided between above-ground structures or above-ground or open air improvements for the operation of the waste treatment facility and any property zoned for agricultural or residential uses, other than the Property on which the waste treatment facility is located. If required by DEQ, additional setbacks shall be provided. (P) 12. All above-ground structures for the operation of the waste treatment facility shall have an architectural design compatible with surrounding single family 4 04SN0303- N OV22- BOS (CPC) 13. (CPC) residential development. Any such structure not incorporating this residential design shall be screened from view. The exact architectural design and/or screening shall be approved by the Planning Department at the time of plan review. (P) In the event any unauthorized, noncompliant, unusual or extraordinary discharge from the waste treatment facility, including but not limited to a bypass or upset as defined by DEQ, should occur where such discharge enters or could be expected to enter Chesterfield County waters, the Owner/Operator shall promptly notify the Office of Water Quality of the discharge. Such notification shall be made within twenty-four (24) hours of the discharge to Chesterfield County's Illicit Discharge Hotline. In addition, the Owner/Operator shall submit a written report of the discharge to the Office of Water Quality within five (5) days of such discharge. This written notification shall include any and all information required by DEQ for reporting unauthorized, noncompliant, unusual or extraordinary discharges. (WQ) 14. The waste treatment facility shall be allowed, but not required, to serve only the Property, any lot, parcel or subdivision abutting or immediately across the street from the Property, and GPIN 761-645-2155. The waste treatment facility shall not serve any lot or parcel less than 43,560 square feet. (P) (NOTE: All conditions and proffered conditions of Case 03SN0332 remain in effect for any development on the request Property.) Location: GENERAL INFORMATION East line of Nash Road, west line of Cattail Road, south of Woodpecker Road. Tax ID 759- 636-Part of 6377 (Sheet 33). Existing Zoning: R-88 with Conditional Use to permit recreational facilities Size: 30 acres Existing Land Use: Vacant 5 04SN0303-NOV22-BOS Adjacent Zoning and Land Use: North - A and R-15; Single family residential or vacant South, East and West - A; Single family residential or vacant UTILITIES County facilities are not available to provide sewer service for the area of the request property. The applicants propose to utilize a collection and treatment system for the entire development rather than individual systems for each lot. The Department of Environmental Quality (DEQ) must approve the system design and construction. While Proffered Condition 7 offers a letter of credit which assures some funding for operation and maintenance of these facilities, the potential exists that the residents served by this system may request that the County assume responsibility for these facilities in the future. In addition, approval of this collection and treatment system may result in additional requests for such sewage systems in areas where County sewer is not available, which may increase the potential for the County being asked to operate and maintain these systems. Given these concerns, the Utilities Department does not recommend approval. HEALTH DEPARTMENT Sewage disposal facilities such as are proposed with this request are permitted and monitored by the Virginia Department of Environmental Quality (DEQ). This State Agency is charged with applying the regulations and reviewing the engineering to assure that the environment, and therefore the public's health, is not adversely affected. While it is presumed that State Code and the DEQ regulations are sufficient, the County will probably not be able to affect how the DEQ enforces these regulations, and what priority it gives them. Local knowledge ofthe area suggests that development up to maximum density allowed by zoning is not possible using only conventional septic systems. A larger percentage of systems than usual will probably require a pretreatment system at the home site, system engineering, or both. The cost per home will increase, as will the annual operating cost. The homeowner will also be responsible for maintaining mechanical components of the system. Lack of maintenance will eventually lead to individual treatment failures and surface discharge of untreated sewage. Individual onsite sewage systems may have a smaller effect in the short run, and this effect would largely be at the individual home and neighborhood level. Over time, as the units age and if homeowners neglect maintenance, failure in multiple systems would have a significant impact on the creek and Lake Margaret. The Health Department would enforce correction oftreatment failures and sewage discharges as they occur. However, these failures would have to be self-reported or complaint reported. The Health Department does not have a monitoring program for septic, pretreatment or engineered systems. 6 04SN0303-NOV22-BOS Regarding the proposed privately operated public sewage treatment plant, Proffered Condition 9 provides that the facility will have an employee on-site who is a certified. It is expected that maintenance and operating issues will be professionally and quickly resolved. Discharge monitoring will routinely be carried out on a schedule required by DEQ, and enforcement actions would be directed towards only one entity. However, a public treatment plant failure will have an immediate and significant impact on the discharge creek (Second Branch Creek) and Lake Margaret, and the County must rely on DEQ to resolve the situation. The Health Department acknowledges that a privately operated public waste treatment facility will probably be no more of a detriment to the environment than individual septic systems, provided that the system is properly designed and properly operated. A privately operated public sewage treatment facility will also reduce the Health Department's future burden of permitting, investigating failures, and enforcement of private onsite systems. A public sewage treatment system, privately operated, may be a more desirable approach in the long term, as long as the County accepts the precedent such a system establishes, and understands that it is surrendering enforcement power to the Virginia Department of Environmental Quality. The Health Department recommends approval of this application. ENVIRONMENTAL The property is bisected by a perennial stream and is therefore subject to a 100-foot conservation area. Although certain uses are permitted within the RP A (i.e. water dependent or utility uses), Proffered Condition 10 provides that there will be no disturbance of the RP A for the proposed facility other than for transmission pipes. The Virginia Department of Environmental Quality (DEQ) is required to regulate the proposed wastewater treatment plant. This will require the owner/operator to obtain, from DEQ, a Virginia Pollutant Discharge Elimination System (VPDES) permit for the wastewater discharge. As part of the application process, DEQ will review and approve construction and design requirements. The VPDES permit will establish effluent limits on the quantity and/or concentration of pollutants allowed in the discharge to protect Virginia Water Quality Standards. The permittee will be required to sample the discharge and report results to DEQ. In addition, the permit also requires the facility to be properly operated and maintained. It is understood, based on information from the Timmons Group presentation, that the proposed wastewater treatment plant could have a design discharge of approximately 0.35 million gallons per day (MGD) of treated wastewater to Second Branch Creek, which drains downstream to Lake Margaret and eventually to Swift Creek. The placement of a wastewater facility poses several issues of concern. Second Branch in the area of the proposed plant is considered a second order stream, approximately 2-3 meters across, and may have periods oflittle or no flow. DEQ has indicated that the 7Q 1 0 flow (period of seven (7) days oflow flow expected to reoccur during every ten (10) years) of Second Branch is 0.12 MGD. This would indicate that during periods of low flow, typically during the summer and early fall, Second Branch below the wastewater discharge will be made up of 7 04SN0303-NOV22-BOS mostly wastewater from the treatment plant. Should the proposed treatment plant experience any kind of upset or bypass, during this period, the potential exists for large flows of concentrated untreated wastewater to enter the creek and Lake Margaret downstream. Given the potential for citizens living along or near the creek and lake to come in contact with any release from the treatment plant, Proffer Condition 13 provides that the facility Owner/Operator promptly notify the County Office of Water Quality of any such discharge. There is a concern regarding the long-term impacts on the creek and Lake Margaret from the continued discharge of not only nutrients, but other pollutants as well. It is understood that the DEQ will place limits on the amount of nutrients, bacteria and other pollutants. However, there will very likely be times when those limits are exceeded. Once these excess pollutants are released, DEQ will require measures to reduce the loadings but not to remove what has already been discharged to the creek. As part of the County's VPDES Municipal Separate Storm Sewer System (MS4), the County is required to inspect and monitor VPDES permit holders to ensure that the regulated discharges are not adversely affecting County waters. The results of County conducted VPDES inspections are reported to DEQ. Other than the ability to inspect and monitor the facility, the Office of Water Quality will have no over sight on the facility. Should the facility be improperly operated or maintained, the flow of the receiving stream may not have the ability to accommodate the discharge from the facility especially during periods of low flow. This would have a detrimental effect on the health of Second Branch and Lake Margaret. It could also be a concern to local citizens living downstream ofthe discharge. Given these concerns, the Office of Water Quality does not recommend approval. PUBLIC FACILITIES Fire Service and Transportation: This request will have a minimal impact on fire services and transportation. Schools: Approval of this request would permit a privately operated public waste treatment facility. According to the applicant, the proposed facility would be designed to serve residential dwelling units on the 1,430 acre tract and would have the capacity built in to serve residential dwellings on adjacent properties as well as an elementary school to be located on a parcel of land dedicated to the County as a condition of a rezoning case to permit an area development (The Highlands Subdivision). (Proffered Conditions 4 and 14) While the condition does not commit the School System to use this proposed facility, it implies that the School System may be interested in such capacity to serve an area school. It is the preference of the school system to be in a position to locate schools where public sewer is available. Given the nature of the school system's business and the need to ensure services are available at all times, if public service was not available the school system would be responsible for building and maintaining a waste treatment facility that serves only the public 8 04SN0303-NOV22-BOS school, as is the case with Matoaca High School. While the school system has no reason to believe a permit would be denied, if a permit could not be obtained for such a facility, the School Board would determine whether or not having service by a private facility would be acceptable or whether another location for a school should be obtained. LAND USE Comprehensive Plan: Lies within the boundaries of the Southern and Western Area Plan which suggests the property is appropriate for residential use of 1 to 5 acre lots, suited for Residential (R-88) zomng. The Plan provides for a choice of residential environments within the southern and western area ofthe County. The Plan offers land use recommendations based on several key issues for the area which include, although not limited to, maintaining the existing forested and rural character of the area, conserving environmental resources and the area's natural beauty, and minimizing the cost of public facilities by promoting orderly and efficient land use patterns. It is important to note that the Plan provides a development approach which logically sequences expenditures for public facilities and services. Specifically, the Plan bases land use recommendations for residential densities on the availability and future plans for public water and sewer services (countywide Water and Wastewater Facilities Plan). Higher residential densities are suggested in the eastern portion of the southern and western area because public utilities are available to serve the developments. For the request property and surrounding areas, the Plan suggests lower density residential developments on lots ranging from one (1) to five (5) acres suited to R-88 zoning because soils are suitable for individual septic systems and public sewer is not available or planned for the area. Growth is deferred in the western portion of the Plan area until such time as public utilities are made available to the area. Staff is concerned that approval of a privately operated public waste treatment facility in this area where public utilities are not available or planned disrupts the orderly, efficient development patterns suggested by the Plan. Zoning History: On November 23, 2004, the Board of Supervisors, upon favorable recommendation from the Commission, approved rezoning (Case 03SN0332) from Agricultural (A) to Residential (R- 88) on a 1,430 acre tract with Conditional Use to permit recreational facilities on twenty (20) acres of the tract. A proffered condition limited development to a maximum density of 0.5 dwelling units per acre yielding approximately 715 dwelling units. It was noted in the case that public sewer was not available to serve the development so other means of sewage disposal must be employed. 9 04SN0303-NOV22-BOS Area Development Trends: The majority of the properties surrounding the request property are zoned Agricultural (A) and are occupied by single family residences on acreage parcels or are vacant. Properties to the north are zoned Residential (R-15) and are occupied by single family residences within Hickory Hollow Subdivision or Residential (R -88) and currently vacant. It is anticipated that larger-lot residential development will continue in the area on properties zoned Residential (R-88) as recommended by the Plan. Conditional Use Criteria and Applicability: The Zoning Ordinance permits public and private utility structures and facilities within residential areas as a Conditional Use. The Ordinance provides that these uses, because of their unique characteristics, cannot be permitted by right in these areas without consideration in each case of the impact of those uses upon neighboring land and of the public need for the particular use at the particular location. Further, the Ordinance provides that such uses are of such a nature that their operation may give rise to problems or require special treatment to create a satisfactory environment with respect to their impact on neighboring property or public facilities and establishes standards to consider when acting upon conditional uses. These standards include: determining that the use will not be detrimental to the public health, safety and general welfare, determining that the use will not be injurious to the use and enjoyment of other properties in the vicinity nor diminish or impair area property values; determining the use will not impede normal and orderly development of surrounding property; determining that the exterior architectural appeal and function of proposed structures will be compatible with area structures; determining that adequate public facilities including adequate utilities, access roads, drainage or other necessary facilities have been or are being provided; and, determining that adequate ingress and egress are being provided. The proffered conditions do not adequately address these guidelines as provided by the Zoning Ordinance and therefore do not appropriately mitigate the impact of the proposed waste treatment facility on the public health, safety and general welfare and area properties. Specifically, concerns still remain relative to the potential adverse impact of noise and odor from the facility; absence of buffers; and the possibility of malfunctions and what impact this might have on area properties. County Responsibilitv and Restrictive Covenants: Proffered Condition 2 requires the developer of any residential lots to record restrictive covenants which are intended to provide notice that lots will be served by the privately operated public wastewater facility and not the Chesterfield County wastewater system. It should be noted that this condition will only apply to the 1,430 acres associated with this application. The condition will not apply to any lots recorded and served by the facility outside the boundaries of this 1,430 acres. 10 04SN0303-NOV22-BOS Although the proffer also purports not to make the County a beneficiary of any restrictive covenants other than aforementioned provision, the County should not be the beneficiary or party to any of these restrictive covenants since the intent is simply to provide notice to lot owners. Proffered Condition 2, in staff s estimation, is an attempt to provide some assurance that the County will not ultimately be responsible for the facility. While the proffer will provide notice to some users of the facility of the County's noninvolvement, no proffer can ever guarantee that future citizens will not seek governmental operation for a variety of reasons. Owner/Operator of Facility: Throughout the proffers reference is made to the "Owner/Operator". Staff assumes that term means "Owner and/or Operator". If this is not the applicant's intent, the proffers should be amended to clearly indicate the intentions. The application indicates that it is anticipated that the system would be owned and operated by a subsidiary of Aqua America which is a publicly traded water and wastewater utility. There is not requirement, however, for Aqua America to be the Owner/Operator. Proffered Condition 5 provides that the owner/operator of the facility will not be a homeowners' association or similar entity and that the owner/operator will not use an association to collect user fees. Proffered Condition 5 requires that the Owner/Operator must be a company that provides water and/or wastewater services at other Virginia. To mitigate risks to the County, it is suggested that the proffer provide that the "facility", as opposed to merely the "Owner/Operator", be regulated by the State Corporation Commission as a public service company. It is also important to note that it is possible that the Owner/Operator may be a company with only experience in water service and not wastewater service. Staff has advised the applicant that the phrase "or its successors" in sentence 2 of Proffer 5 is wrongly placed and should be deleted. Regulation by the State Corporation Commission (SCC): Proffered Condition 5 provides that the Owner/Operator will be regulated by the State Corporation Commission (SCC). Although the current state law requires a company that provides service to more than fifty (50) residential lots be a public service corporation and subject to regulation by the SCC, the law could change. Therefore, it has been staffs suggestion that the proffers require the company to be a public service corporation. As a public service corporation, the Owner/Operator would be subject to various regulatory controls by the SCC which would include, among other things, the ability to appoint a receiver to operate the facility, if warranted. 11 04SN0303-NOV22-BOS Staff also understands that the SCC monitors rates and has a prescribed process when a rate change is proposed which includes a process to gather public comment. Regulation by the SCC provides an assurance regarding rates for homeowners, but does not guarantee stability ofthe operator or owner to a point where the County can be assured that it will not ultimately be responsible for the facility. Financial Surety for Operation and Maintenance: Proffered Condition 7 requires the Owner/Operator to provide a letter of credit to provide surety for appropriate operation of the facility. This condition only applies to the 1,430 acres associated with this application and not any land area outside the boundaries of the 1,430 acres. This condition offers that, if the County does have to assume responsibility for the operation, two (2) years of the operating expenses will be guaranteed by the Owner/Operator. It does not provide assurance beyond this period and does not provide additional funds for any other costs which may be incurred by the County. The condition further provides that should the County call the letter of credit, the operator will restore the full value of the letter of credit within thirty (30) days (Proffered Condition 7). Staff advises that it is unlikely that the Owner/Operator, if matters decline to the point that the County must take this action, will be financially able or willing to restore the letter of credit. Certification of Permits Obtained: Proffered Condition 8 requires the Owner/Operator to provide the County with a comprehensive list of all state and federal permits required for the facility and evidence that all required permits have been obtained prior to construction and operation of the facility. Facility and Service Area: Proffered Condition 3 provides that exclusive of buffers and access drives, a maximum of eight (8) acres will be used for the location of above ground structures or improvements associated with the operation of the proposed facility. Information submitted with the amended application suggests that the facility will have a series of underground tanks and structures which cleanse the waste before discharging into a stream. The application does not, however, require a specific type waste treatment facility. Proffered Condition 14 limits the area that could be served by the facility to the property, any lot, parcel or subdivision abutting or immediately across a street from the property and the County owned property dedicated as a part of the Highlands zoning. More specifically, the facility could serve not only the subject property which is currently allowed approximately 715 dwelling units but also ultimate development of the R-88 property to the north (commonly known as the Roper tract consisting of approximately 642 acres with 0.5 units per acre permitted yielding approximately 320 dwelling units) as well as any other abutting property or any property across streets from the property. Staff estimates, based on the proffer, the ability to serve approximately 1,187 acres or more in addition to the subject property and the Roper property. If the area develops at 0.5 dwelling units per acre, the 12 04SN0303-NOV22-BOS potential exists for approximately 1,600 dwelling units or more to be served by the facility. The total number of dwelling units and amount ofland area that could be served is virtually unknown since the proffer allows any "subdivision abutting or immediately across the street from the property" to be connected to the facility. For example, if the Roper property to the north were to be subdivided and recorded as a subdivision that includes the undeveloped portion of the Highlands, then the undeveloped portion of the Highlands could be served by the facility. Of course, other scenarios exist where parcels of land which are adjacent to the subject property could be combined with other parcels to create a subdivision. Therefore, it is unknown as to the amount of land and number of dwelling units that potentially could be served by the facility. The proffer further states that the facility will not serve any lot less than 43,560 square feet. As noted previously, the Plan suggests the area is appropriate for residential development of one (1) to five (5) acre lots, suited to R -88 zoning. R -88 zoning requires a minimum lot area of 88,000 square feet with the ability to reduce lot size to 65,340 square feet or if the lot is served by public water and sewer to 43,560 square feet. In any case for reduced lot sizes, the total number oflots permitted is based upon particular calculations. If this case is approved, the facility will be a public sewer system thereby allowing under certain circumstances for lots to have an area of 43,560 square feet under R-88 zoning with the use of public water. Fencing: Proffered Condition 1 provides that any above ground structures associated with the facility will be fenced to preclude trespassing. Setbacks: Proffered Conditions 6 and 11 establish setbacks for any above ground structures associated with the facility from Nash and Cattail Roads and from any adjacent residential or agricultural use. While the applicant has submitted information regarding the type of facility proposed, the proffers do not require the type of system shown on the attachment. Without specifics or guarantees as to the type of system, staff is not sure if the setbacks are sufficient to mitigate the impact on the surrounding area. Staff recognizes that the Department of Environmental Quality (DEQ), the State Agency responsible for permitting the proposed facility, may have certain minimum setback requirements, these setback requirements are mainly intended for protection of the environment, not for the mitigation of impacts of the proposed land use on the surrounding area. Architectural Treatment and Screening: Proffered Condition 12 addresses architectural treatment for any proposed above ground structures associated with the facility or screening. 13 04SN0303-NOV22-BOS CONCLUSIONS The request property lies in an area of the Southern and Western Area Plan where recommendations for residential use suggest such use is appropriate on one (1) to five (5) acre lots suited for Residential (R-88) zoning. This recommendation is made in the area because soils are suitable for individual septic systems and public sewer is not available or planned. The request fails to adequately mitigate the impact of the proposed facility on the public health, safety and general welfare and on area properties. Proffered conditions do not guarantee, nor could they guarantee, that the County would not incur some future liability or ultimate responsibility for this facility. Further, the request fails to address concerns regarding the long-term impacts of the facility on Second Branch Creek and Lake Margaret. Given these considerations, denial ofthe request is recommended. CASE HISTORY Planning Commission Meeting (9/21/04): The Commission deferred the request to their January 18,2005, public hearing, sixty (60) days at the applicants' request and sixty (60) days on motion of the Matoaca District Commissioner. Staff (9/22/04): The applicants were advised in writing that any significant, new or revised information should be submitted no later than November 15, 2004, for consideration at the Commission's January 18,2005, hearing. Also, the applicants were advised that a $250.00 deferral fee must be paid prior to the Commission's public hearing. Applicants (10/1/04): The deferral fee was paid. Staff (11/15/04): No new or revised information has been received. 14 04SN0303-NOV22-BOS Staff (11/24/04): The applicants were sent correspondence providing comments and questions from staff relative to the request and draft homeowners association documents. Staff (12/22/04): No new or revised information has been received. Applicants (1/5/05): Responses to comments and questions from staff on 11/24/04 were received. This correspondence indicated the applicants were studying an alternative treatment system to the "Sheaffer System" and provided details regarding operational plans, agreements and design of the system would be provided at a later date. To date, this information has not been received. Planning Commission Meeting (1118/05): At the request ofthe applicants, the Commission deferred this case to June 21, 2005. Staff (1/19/05): The applicants were advised in writing that any significant, new or revised information should be submitted no later than April 18, 2005, for consideration at the Commission's June 21, 2005, public hearing. Also, the applicants were advised that a $130.00 deferral fee must be paid prior to the Commission's public hearing. Applicants (2/10/05): The deferral fee was paid. Applicants, Area Citizens and Matoaca District Planning Commissioner (2/28/05): A meeting was held to discuss the request. 15 04SN0303-NOV22-BOS Applicants (4/1/05): Revised and additional proffered conditions were submitted. Applicants, Area Citizens and Matoaca District Planning Commissioner (4/26/05): A meeting was held to discuss this request. Applicants (5/16/05): Draft revisions to proffered conditions were submitted. Staff (5/17/05 - 5/26/05): Comments were provided on draft proffered conditions. Applicants (6/2/05): Draft revisions to proffered conditions were submitted. Applicants (6/6/05): Revised and additional proffered conditions were submitted. Staff (6/8/05): Comments were provided to applicants regarding revised and additional proffered conditions. Staff (6/14/05): No new or revised information has been received. Planning Commission Meeting (6/21105): At the request of the applicant, the application was deferred to August 16, 2005. 16 04SN0303-NOV22-BOS Applicants and Staff (6/29/05): A meeting was held to discuss the "Request Analysis". Applicants and Staff (71705): A meeting was held to discuss the "Request Analysis". Staff (7/13/05): The applicants were provided with written comments on the proffered conditions. Applicants (7/18/05): The application and proffers were amended. Planning Commission Meeting (8/16/05): The applicant requested a deferral to February 2006. There was discussion as to purpose of a lengthy deferral. Some suggested that staff should study the appropriateness, and the conditions under which, public/private wastewater treatment facilities should be allowed in the County in those areas not served by the County system. Some indicated that such a study was not necessary since the issues are outlined in the pending proposal. The applicant agreed to amend the request to seek a deferral to September. At the request of the applicant, the Commission deferred this case to September 20,2005. Staff (8/17/05): The applicant was advised in writing that any significant, new or revised information should be submitted no later than August 22, 2005, for consideration at the Commission's September 20, 2005, public hearing. Also, the applicant was advised that a $230.00 deferral fee must be paid prior to the Commission's public hearing. Applicants(8/24/05): The deferral fee was paid. 17 04SN0303- N OV22- BOS Staff (9/1105): To date, no new or revised information has been received. Planning Commission Meeting (9/20/05): There was support and opposition present. Those in support indicated the facility would accommodate housing variety in the area and a new school; the variety of housing would generate less school students and traffic than larger lot development; and there would be less impact on the environment than conventional septic systems. Those in opposition expressed concerns that approval would set a precedent; accommodate development not in compliance with the Plan; place taxpayers at risk should there be a failure; lead to development on smaller lots; and create odor problems. Mr. Bass made a motion to recommend approval noting that the system would be superior to individual septic systems; the total number of lots permitted is not increasing; and that the State Corporation Commission has stringent requirements. Mr. Gulley seconded the motion for discussion. Mr. Wilson indicated he was comfortable with the technology and safeguards; however, he was hesitant to proceed without having County standards to address criteria under which such facilities should be allowed. He indicated he may in a position to support with the caveat that the Board establish standards for future cases. Mr. Gecker indicated that he, too, desired to have Countywide standards prior to acting upon this proposal. He indicated that utilities is a way to control growth; expressed concerns that approval of the current proposal may result in premature development; and that the question is a growth management issue. Mr. Gulley concurred that it is a growth management issue and indicated that the application does not provide the guarantees of the type of system to be used. A vote on Mr. Bass' motion was as follows: AYES: Messrs. Wilson and Bass NAYS: Messrs. Litton, Gecker and Gulley. Therefore, the motion failed. Mr. Gecker made a motion to deny the request. His motion was seconded by Mr. Gulley. A vote on the motion was as follows: 18 04SN0303-NOV22-BOS AYES: Messrs. Gecker and Gulley NAYS: Messrs. Bass and Wilson ABSTENTION: Mr. Litton Therefore, the case was carried over to the Commission's October 18,2005, meeting. The Commission directed staff to advertise a public hearing so any new information could be discussed. Staff (9/21/05): The applicant was advised in writing that any significant, new or revised information should be submitted no later than September 26, 2005, for consideration at the Commission's October 18,2005, public hearing. Applicants (9/29/05): Revised Proffered Condition 5 and new Proffered Condition 14 were submitted. Applicants (10/1 0/05): Revised Proffered Conditions 5 and 14 were submitted. Planning Commission Meeting (10/18/05): The applicant did not accept staff s recommendation, but did accept the Planning Commission's recommendation. There was support and opposition present. Those in support indicated that the facility would have less impact on the environment than individual septic systems and that the facility would provide the opportunity for area property owners to connect should their septic systems fail. Those in opposition expressed concerns that the facility would spur development in an area that has an inadequate transportation system; failure ofthe system would have a detrimental impact on the environment; potential noise and odor impacts for the facility; the lack of County standards for private facilities; lack of sufficient buffer; and failure of the proffer to limit the capacity of the facility and guarantee the type of facility. Mr. Bass indicated that the current zoning addresses the impact on area roads; that even if the Count approves the facility, the owner/operator must obtain nutrient allocation to discharge into the streams; that the facility is regulated by the State Corporation Commission and the 19 04SN0303-NOV22-BOS -".,_._-----,~---~.,.-. Department of Environmental Quality; and that the Health Department has indicated that the facility is preferable to individual septic systems. Mr. Gecker indicated that he was troubled approving a facility with no Countywide standards to guide under what circumstances such facilities should be allowed. He stated one of the most effective means to control and guide growth is to control and guide extension of utilities; that approval ofthe facility could set a precedent for other similar facilities spurring growth in outlying areas of the County where there are not adequate public facilities; the proffers fail to guarantee the type of facility and address ownership and placement of utility lines; and that the Environmental Engineering Department is of the opinion that there is insufficient flow in the receiving stream to effectively accommodate discharge from the facility. Mr. Gulley indicated his concern that the impact of the facility on the environment may not be known for eight (8) to ten (10) years; the Countywide standards for private facilities; that the Board of Supervisors should adopt policies as to whether private facilities are acceptable and if so, under what circumstances before the Commission takes action on an individual proposal; environmental impact on stream; his lack of confidence that the Department of Environmental Quality will effectively regulate the facility; and that the final decision as to the appropriateness of the facility, is a growth management issue. Mr. Wilson indicated that the environmental and health impact issues favor the facility over private individual systems; that the facility would be monitored by the Department of Environmental Quality; the lack of Countywide standards was bothersome; that approval would not increase the number of permitted lots or overall density; that the Board of Supervisors should adopt Countywide standards to guide decision on the appropriateness of private wastewater treatment facilities, and then forward the current proposal to the Commission for consideration; and that he would not support a similar private facility in areas designated on the Comprehensive Plan as "Deferred Growth". Mr. Litton concurred with Mr. Wilson and reiterated that the Board should adopt Countywide standards prior to acting upon the current proposal and that once those standards are adopted, the current proposal should be reevaluated. On a motion by Mr. Bass, seconded by Mr. Wilson, the Commission recommended approval and acceptance of the proffered conditions on pages 2 through 5. AYES: Messrs. Litton, Wilson and Bass NAYS: Messrs. Gecker and Gulley The Board of Supervisors, on Tuesday, November 22,2005, beginning at 7:00 p.m., will take under consideration this request. 20 04SN0303-NOV22-BOS - c w c z w ~ ~ (W) o (W). o~ z· (/)0 'IIIIt¡::::0f.j ot12J ~ +-' Q) Q) LL o o ~ N o o o ~ N c: o -- -+-ø t) Pi):!> 1'1 '\ \U - Q.) en en en Q.) u o l- e... "'- :IE ;¡ .. iii " 1:1 ;¡ ..; <IJ ..; ~ ~ <IJ Z .~ :3 <IJ ~ ~ :;¡! ;¡ ~ = iii ~ ;¡ ¡i :IE ;¡ ..; Z ~ ~ ~ t :IE i !rr¡ rr¡ .~ '"' III: e .. . :. . . . . a. j o a:: C). ~ o "'; Z~ O~ z E£ '" ~> tIIIío", - ~ ",2 iii / ~ t, :;¡!:; .~ z~ E= ...." 'tt ( ~ ~, ~ t ~;~ , 04SN0.3ð3-/ 04(5hD~3- ,~ ~~ 38 Planning July 2005 'PLANNING PRACTICE cost-effective option for meeting long-term public health and water quality needs. Following the EPA's endorsement, STEP systems gradually became more commonplace in cities and counties across the U.S. As STEP gained momentum, however, planners in the Southeast, particularly in Tennessee, began to see a downside: The combination of STEP systems and outmoded zoning ordinances were spawning the kind of rural housing development that had never been feasible before. Planners call this sprawl. Now planners and public works officials in various parts of the U.S. are working to adapt to the spread of new wastewater collection tech- nology and the challenges that come with it. !low the Îeehnology wOI'ks Experts describe STEP systems as small-scale versions of municipal sewer systems-capable of treating wastewater from a number of homes or businesses and dispersing sanitary effluent into the soil. With a STEP system, waste first enters a holding tank similar to a standard septic tank. But the similarities between STEP and the conventional septic systems end there, according to John Buchanan, a water quality expert in the University of Tennessee's De- partment of Biosystems Engineering and En- vironmental Science. Buchanan notes that septic systems, unlike STEP systems, depend entirely on soil for waste- water treatment. Materials collected in a tradi- tional septic tank are separated into three dis- tinct layers: a top layer of wastewater, a middle layer of "less dense solids" such as grease and oil, and a bottom layer composed of solid waste. "The septic tank is constructed so that the middle layer is what goes our to the drain field," says Buchanan. "So two major pollutants have been reduced in concentration but not eliminated. You depend 1 00 percent on your soil to remove the remainder of those constituents that could be in the wastewater." A second round of treatment found in most STEP systems in the Southeast-usu- ally involving a recirculating fìIter composed of either sand or gravel-significantly reduces the level of pollutants in the wastewater before it is slowly dispersed underground. "It's not just a physical filter; it's also a biological treatment unit. In other words, bacteria will develop on the filter media and will break down the wastewater," says Ed Polk, whose daily responsibilities at the T en- nessee Department of Environment and Con- servation include issuing permits for new STEP systems. As the EPA explains, this secondary treat- ment stage sets STEP and other decentralized sewer treatment systems apart from the septic tank and standard drain fields used for the past half-century to serve developments not served by municipal wastewater systems. In its 1997 report to Congress, the EP A found failing septic systems to be the nation's second leading cause of groundwater pollution. The third and final stage in a STEP system is known as the land application phase. Most of the 1 GO-plus systems scattered across T en- nessee employ drip irrigation for land applica- tion, says Polk. The treated wastewater is gradually released (at the rate of a few inches per week) via a system of narrow plastic pipes buried at depths as shallow as seven inches. In many instances, the efI1uent can then be reused for irrigation. "You're putting back into the soil water that has essentially the same characteristics as the raw water that a water treatment plant would pull in from a river," says Buchanan, who also serves as the director of the Univer- sity of Tennessee's newly established Center for n~centralized Wastewater Management. i\lanagellH'l1t iSSIH's According to rhe EPA, STEP systems re<:juire a meticulous management program in order to opl~rate successfully. Solid waste must be pumped out of the storage tanks every few years, and managers must ensure the system's integrity almost every day. Local governments have taken different ap- proaches to regulating and controlling STEP systems. The final underground dispersal phase commonly found in Tennessee and other South- ern stares was omitted from STEP systems insta¡¡'~d in Olympia, Washington. In Olym- pia, the treated wastewater is directed toward the city's sewers instead. Once a developer covers the costs associ- ated with engineering, designing, and build- ing a STEP system in Olympia, ¡the system is handed over to the municipality, along with management duties. Olympia's taxpayers have found that maintenance is costly, Mucha says. "These systems are actually costing us more to maintain," says Mucha. "A lot of our over- time calls are the result of these pump systems that are failing on properties. Our residenrs don't even know they have a STEP system in their front yard until sewage backs up. They call the city. We go out and fix it. Costs are escalating for sewer maintenance." A staff report issued by the city's public works department during a public hearing in March estimated that 90 percent of Olympia's sewer utility calls were STEP-related. Every homeowner in the city pays the same sewer rate. That means that f<ltepayers con- nected to the municipal sewer system help to pay the maintenance costs associated with STEP developments; users of the STEP sys- tems, on the other hand, pay no more than those tied to conventional sewer systems. Am<rÍ<an Planning AssodalÌon 39 ;- "" ~ ... Unforeseen environmental problems have also cropped up in Olympia. STEP systems include a tank for wastewater collection, just as septic systems do. Odors and leaks do occur, says Mucha. CI'í(În;I ¡¡ 1!I"ÌP In Tenness<:e, developers are also required to install STEP systems. However, ownership of the systems is then transferred to a local public utility, and many of the utilities have negotiated agreements with STEP construction compa- nies. Those agreements typically make the sys- tems' designers responsible for maintenance. Most STEP systems in Tennessee are located beyond municipal boundaries because many cities prohibit them. The oldest STEP system in Wilson County, Tennessee-a rapidly growing area just east of Nashville-was built in 1999 to serve a rural school. r n parr because of the mainte- nance agreement, the system still performs as if it were newly installed, says Eddie Harris, the executive director of the Wilson County Water and Wastewatet Authority. When STEP 40 Planning July 2005 technology was first introduced to Tennessee, Harris explains, system maintenance was a responsibility initially passed on to homeowners' associations. That strategy didn't work. "When they permitted them in homeown- ers' associations, nobody did the mainten- ance. Nobody did the testing. They let their permits expire," Harris says. "Then they were in trouble with the state and the EPA, and the next thing you knew, the system didn't work." Wilson County planner Thomas Brashear, AICP, says maintenance by a utility is a definite plus for STEP developments in rural areas far PLANNING PRACTICl' Spmwl magnets As city officials in Olympia struggle to iden-· tity methods for reining in STEP-centered developments, middle Tennessee faces an en- tirely different problem. PlaQners in the so-called "donut coun- ties" surrounding Nashville say STEP sys- tems have become the technolctY of choice for developers o( large, rural subdivisions. It's a trend, they say, that has fueled sprawl and left county governments playing catch- up as they search for ways to improve roads and build schools in these long-undisturbed locales. 250,000 new residents between i990 and 2003, census figures show. Population esti- mates continue to surge as the area draws new businesses and industries, including such well- known corporations as Dell Computers, the Nissan Motor Company, and Bridgestonel Firestone ofN orth America. Many Tennessee newcomers seek housing in traditionally rural areas located a short distance from downtown Nashville. Accord- ing to local planners, residential developers have been more than willing to oblige. t. STEP systems have become the wastewater collection method of choice for developers removed from a public sewer service. In con- trast, "septic tanks are inspected at installation, and there is very little regulatory or mainte- nance oversight after installation," he says. "STEP systems typically provide for ongoing mainte- nance and regulatory oversight through the utility provider," Brashear notes. But without such a maintenance agree- ment in place, the city of Olympia found upkeep hard to cope with. In March, the city imposed a three-month moratorium on the construction of STEP systems. During that time, public works officials were to research current policies and identify changes that would make management more efficient, Mucha says. His department is ex- pected to make recommendations to the city's land-use and environment committee later this year. Olympia would have added nearly 1,800 new STEP systems in the three months covered by the ban, according to the city's projections. Brashear says the STEP systems allow the maximum residential density specified in county zoning ordinances. That is because minimum lot sizes were established well before the new methods of wastewater collection and treat- ment came along. Without the new technol- ogy, Brashear says, the lot sizes would be unachievable in areas that lacked public sewer service. "You are seeing many more residential lots of minimal size pop up in areas where lots have traditionally averaged one to five acres," Brashear says. "The problem here is that, while increased lot density is not inherently bad, it causes a significant drain on local government infrastructure when it occurs out- side of areas that can handle the impact of the additional homes, cars, schoolchildren, [and] emergency service calls." The greater Nashville area has witnessed tremendous growth in recent years. The six- county region around Nashville gained nearly because of the low cost of installing pipelines at relatively shallow depths. Coupled with the inexpensive land prices in rural areas, STEP systems may allow developers to generate higher profits while passing on infrastructure-related expenses to county taxpayers. A bad deal? Robert Franklin is the planner for the city of Mt. Juliet, Tennessee, one of the fastest grow- ing municipalities in the state, in part because ofits proximity to Nashville. Like many mu- nicipal officials across the sta.te, Franklin views the STEP systems as a drain on county coffers and-to an extent-as an infringement on the city's plans to expand public sewer service into planned gtowth areas. Franklin says that STEP systems were "sold" in Tennessee as a means of repairing decades- old wastewater systems. He contends that the cost of infrastructure improvements is lower when growth and development are concen- trated in urbanized areas an¿ deveioper!i pray a larger role in funding government services. "STEP system development lures invest- ment ,away from urbanized areas with cheaper land prices. That allows the developer contri- bution to infrastructure to decrease and the public: subsidy to increase," says Franklin. "The development community sees cheaper land and lower infrastructure costs as a more profitable investment. The lagging demand for road improvements and school construc- tion is a cost then passed on to the taxpayers." Olympia's Michael Mucha notes that while STEP systems also have proven popular with ~;h'1ance...'i.1ents such as hospltal5, schools, ~w.d neighborhood commercial strips, improviT'g the quality of life of there, he says. To help control the "turbocharged" sprawl associated with STEP systems in Tennesset~, Franklin suggests requiring much larger minimum lot sizes until a public sewer is within reach. A guide produced in 2003 by the National Association of County Planners challenges this notion, however. The guide, written to aid county planners in areas wher4~ STEP and similar systems are used, says that a better option is the development of a pmper man- agement program. developers in Washington State, sprawl isn't a... big a problem there. That may largely be because of the state's growth management laws. "We have vety good zoning and plan- ning regulations, so subdivisions are being developed in spots where they were intended to be developed," he says. Still, Mucha notes that STEP systems have produced some irregular sewer expansions in Olympia., as they have in Tennessee. "There's an orderly development of infrastructure, of roads," ¡;ays Mucha. "But, with the STEP systems, lines can be run a half-mile, three- quarters of a mile, to the nearest city gravity sewer system. So the network is more like a spider network of pipes instead of an orderly collection system that is easy to maintain.." 011 (hI' plu!' sidt, Even Franklin concedes that STEP œchnol- ogy has some benefits. Systems installed in rural areas can help provide community "Too frequently, jurisdictions have tried to control growth not by planning or zoning, but by setting arbitrary minimum lot sizes for properties using on-site systems," says the report, entitled "Planning for Septic Sys- tems-Use of Online Decentralized Systems in Developing Areas." Growth control would be stronger in T en- nessee, says Brashear, if public utility provid- ers were under the jurisdiction of state plan- ning laws. Brashear says such a move would not only rein in the soaring number of rural residential developments but would also help to end the turf war between municipalities and the utilities that oversee STEP systems. "The state of Tennessee has made great leaps fOlWard in their support of good land- use planning and smart growth. Now they need to finish the job," says Brashear. Working (oWHl'd II ('0111111011 goal Brashear's idea seems to have some traction. American Planning Association 41 Noting that public utilities own STEP systems aç!'m~ t.~~ state, the Tennessee General Assem- bly this March unanimously approved legisla- rion aimed at limiting public liability in the event of a major decentralized sewer failure. New regulations require public utilities in the wastewater service busi.ness to post a bond to ensure that STEP systems are prop- erly operated and maintained. Proponents of the measure say that if a STEP system fails or a private contractor becomes insol- vent, the new requirement will provi.de a safety net for both the utilities and the general public. "If these systems fail, at least there will be [funds] for maintenance and operation of these wastewater services, " says Waller Henry, a research analyst with the Tennessee state senate environment committee. With their relatively shon track record, STEP systems have left government officials across the nation seeking a middle ground- one that will protect existing infrastructure, taxpayers, and the environment. While there is no consensus about the appropriate use of the technology, virtually everyone involved believes that it could ultimately provide a safer, more effective alternative to standard septic tanks and fields. "The STEP system and other forms of decentralized sewers represent a giant leap fOlWard in the provision of sewage disposal for remote areas as opposed to the traditional septic tank and drip field technology," says Brashear. "They have some potential for pro- viding sales tax revenue and job-producing commercial and industrial development" where those were never an option. Brian Harville is a reporter with the Lebanon Dm¡o- erat in Lebanon, Tennessee. His articles about STEP systems, published in 2004, won an AìPA journalism award earlier this year. H t' sou .. e t' S . 011 the web. University ofTcnnessœ Center for Dcœmralized W';¡stcwater Management: onsitc.rennessce.edu. EPA Office of Decen- tralized \X1asrewatcr Managcmcnt: cJj)l¡[). cpa.gov/owmlsepric. Consortium oflnstitutes for Deçcl1ualizt'd \X!aslt"warcr Trt'armenr: IVWW .011 si reçol1so rti t'lm.org.