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Planning Commission Maintains Its Control

"By-right" applications challenge SUP process.

Could the granting or denial of development Special Use Permits by the Alexandria Planning Commission become an obsolete process?

That was a question raised by the commission at its October meeting in relation to a request for a development site plan.

As summarized in a memorandum to the commission from Eileen Fogarty, director, Planning and Zoning Department, dealing with a request for a development site plan to construct a multifamily residential building at 240 Yoakum Parkway, "there has been a significant increase in the amount of site plan applications and a corresponding decrease in the amount of special use permit applications."

The perceived problem has arisen from the interpretation of "by-right" development. This occurs where a particular parcel is to be developed or redeveloped in compliance with how that parcel is zoned or been used in the past. A prime example is a plot that has been utilized for residential purposes being proposed for redevelopment but not a change in use.

In the case of the Yoakum Parkway proposal, known as Tuscany at Landmark, LLC, the commission deferred action at its September meeting "in order to obtain further guidance from the city attorney regarding the commission's discretionary authority in review of a site plan versus a development special use permit," according to the staff report.

CITY ATTORNEY Ignacio B. Pessoa issued that opinion in writing and verbally during the commission's Oct. 5 meeting. His conclusion was that the commission did not lose its oversight authority relative to controlling development just because the proposed use was a "by-right" situation.

"The distinguishing characteristic of the site plan review process is that it is an administrative review process. As such, the process consists ... of two established city policies to the application process," Pessoa said.

The first is "that the uses and density allowed by the zone applicable to the site in question are permitted." The second demands "that the site design and engineering features of the project must reasonably avoid harm to the surrounding properties, neighborhood and city," he said.

It is the second factor that keeps the Planning Commission in the review and approval process. Avoiding harm "to the surrounding properties, neighborhood and city is established to a substantial degree by the site plan criteria in Section 11-410 of the Zoning Ordinance," Pessoa said.

"These criteria are authorized by ... the City Charter, by which the General Assembly has authorized the City to adopt "regulations and restrictions [which] may prescribe standards and requirements" to assure "the orderly conduct and proper development of land" and protect the public interest," he said.

Based on all the various considerations applicable to a given situation, Pessoa said, "a decision to deny a site plan approval is justified where there is substantial evidence that ... the project's site design or engineering will have an adverse public impact."

However, "In determining what is reasonable ... the commission is required to balance the nature and degree of public harm to be avoided, against any burden" that an alternative design might place on a given applicant.

Following Pessoa's explanation, Commissioner John Komoroske said, "It's apparent that the Planning Commission has a lot more discretionary power than was thought under a by-right situation." He noted that Pessoa's memorandum should have an adverse impact on "the development community's effort to end run the SUP process by using by-right."

THE DEVELOPMENT PROPOSAL that triggered the concerns of both Planning and Zoning staff as well as the Planning Commission is a site plan to develop 104 condominium units on a vacant 2.19 acre wooded and sloping site, according to the staff report. They are to be known as Tuscany Condominiums.

Planned are two four-story buildings above a one-level, partially below grade parking garage. The site is zoned RC/Residential, for high density apartments, with 445 feet of frontage on Yoakum Parkway. The site size would permit 54.45 dwelling units per acre with a site plan.

Staff said in their report, "The site has numerous challenges which include its long narrow shape and considerable topography. Additionally, the site is completely wooded. The proposal will result in the loss of the majority of the existing vegetation and trees on the site.

"While staff encourages the retention of trees and tree canopy for all site development where possible, retention of trees on this site would require a significant reduction in the building footprint. Given that this is a site plan, the applicant has not been willing to reduce the size of the project to retain additional trees or open space ...."

It was the latter point, that this was a site plan and not subject to the development SUP process, that brought into juxtaposition the two concepts. However, in the final analysis, staff recommended approval of the site plan with certain conditions. When it came to a vote, based on the staff recommendation, it was approved unanimously.