04SN0303-Jan25.pdf
September 21, 2001 CPC
January 18,2005 CPC
JlHle 21, 2005 CPC
/\ugust 16, 2005 CPC
September 20, 2005 CPC
October 18, 2005 CPC
November 22, 2005 BS
January 25,2006 BS
STAFF'S
REQUEST ANALYSIS
AND
RECOMMENDA nON
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. GECKERAND GULLEY
STAFF RECOMMENDATION
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 MAYBE IMPOSED AND THE PROPERTY OWNER MA Y 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. Ifthe 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 of the fencing shall be
approved by the Planning Department at the time of plan review. (P)
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2.
The developer of any residential lots to be served by the waste treatment
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 of the 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 itselffrom the regulation
of the State Corporation Commission. The operation, management,
maintenance, repair or replacement of the 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
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04SN0303-]AN25-BOS
(CPC)
(CPC)
( CPC)
(CPC)
9.
11.
surety for the faithful operation of the waste treatment facility in accord with
all applicable laws, ordinances and regulations. The value of the 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 of projected 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)
8.
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)
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)
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Location:
12.
All above-ground structures for the operation of the waste treatment facility
shall have an architectural design compatible with surrounding single family
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)
13.
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.)
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:
Size:
R-88 with Conditional Use to permit recreational facilities
30 acres
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Existing Land Use:
Vacant
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 of the 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 of treatment failures and
sewage discharges as they occur. However, these failures would have to be self-reported or
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complaint reported. The Health Department does not have a monitoring program for septic,
pretreatment or engineered systems.
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 RPA (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
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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
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 of the 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
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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
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 I to 5 acre lots, suited for Residential (R-88)
zonmg.
The Plan provides for a choice of residential environments within the southern and western
area of the 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.
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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 architcctural
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 Responsibility 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.
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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". Ifthis 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.
Staffhas 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.
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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
of the 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 ofthe 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 ofthe 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 ofthe 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
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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-]AN25-BOS
·-"~~_~'·____'~_~~_O'__"__'_." "'~_.__._,._..._._.,___._..~..__,~._.~,,_
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 of the 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-]AN25-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 (1/18/05):
At the request of the 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-]AN25-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 (6/21/05):
At the request of the applicant, the application was deferred to August 16,2005.
16
04SN0303-]AN25-BOS
",.. ·_-_·^~__~~.__...._"ù__,~._.__ ~..___~.._
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-]AN25-BOS
._...,._'_.----'>-"'."--""-,_._-------------......._.._~_.. ,
Staff (9/1/05):
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:
A YES: Messrs. Wilson and Bass
NA YS: 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-]AN25-BOS
"~~-~-------,--~..~"._._.,---_._-~---
A YES: 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 (10/10105):
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-]AN25-BOS
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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 of the 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 ofthe proffered conditions on pages 2 through 5.
AYES: Messrs. Litton, Wilson and Bass
NAYS: Messrs. Gecker and Gulley
Board of Supervisors' Meeting (11/22/05):
The applicant requested a deferral until January 25, 2006. There was support present to
deferral indicating the time period would allow the County to develop criteria to be
20
04SN0303-]AN25-BOS
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considered when evaluating proposals for waste treatment facilities. There was opposition
present to the deferral indicating that the case had been deferred numerous times and that the
Public Facilities Plan and Southern and Western Area Plan should be amended if the
proposal is to be considered acceptable.
Mrs. Humphrey made a motion to defer the request to January 25,2006. Her motion was
seconded by Mr. Warren.
Mr. Barber made a substitute motion, seconded by Mr. Miller, for the Board to deny the
deferral of Case 04SN03 03. He indicated he was very uncomfortable with the precedent that
would be set by allowing a residential development to hook into a private wastewater
treatment plant. He expressed concerns relative to the safety and security of residents using a
private facility, a failure of the system in the future, and increased density as a result of
permitting the facility. He stated the county struggles with growth management, and
requiring connections to utility lines is the county's strongest tool to controlling growth. He
further stated he is not at all inclined to support residential development using private
wastewater treatment plants or to develop regulations for facilities such as this. He stated he
would like to hear the case because he does not believe his opinion will change during a
deferral period.
Mr. Miller expressed concerns that thousands of acres would be available for residential
development in the county if the facility were allowed. He stated he is not inclined to
support the request and will not support it if deferred, indicating that he would also like to
hear the case tonight.
Mr. King stated he is not satisfied that all of the facts surrounding the proposed facility have
been presented. He further stated he does not agree that the county should develop criteria
for facilities such as this. He acknowledged that connection to public facilities is a growth
management tool and suggested that the Board study the issue further and decide whether or
not they want to permit this type offacility. He expressed concerns that members of the Task
Force for Responsible Growth have not expressed opposition to the request. He stated,
although he would prefer a 30-day deferral, he will support a 60-day deferral to allow
additional information to be provided by staff regarding the proposed facility.
Mr. Barber called for a vote on his motion, seconded by Mr. Miller, for the Board to deny the
deferral of Case 04SN0303.
A YES: Barber and Miller.
NAYS: King, Humphrey and Warren.
After brief discussion regarding the deferral time period, Mr. Barber then called for a vote on
the original motion of Mrs. Humphrey, seconded by Mr. Warren, for the Board to defer Case
04SN0303 until January 25,2006.
21
04SN0303-]AN25-BOS
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AYES: King, Humphrey and Warren.
NA YS: Barber and Miller.
Staff (11/23/05):
The applicant was advised in writing that any significant, new or revised information should
be submitted no later than November 28,2005, for consideration at the Board's January 25,
2006, public hearing.
Also, the applicant was advised that a $250.00 deferral fee must be paid prior to the
Commission's public hearing.
Applicant (12/6/05):
The deferral fee was paid.
Staff (1/4/06):
To date, no new or revised information has been received.
The Board of Supervisors, on Wednesday, January 25,2006, beginning at 7:00 p.m., will take under
consideration this request.
22
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