Legacy: The Big Woods Development Company Request – What you need to know

City Council will be voting on these items TUESDAY, NOVEMBER 12th at 7pm.  If you want your voice heard, e-mail City Council via Evie.Insley@poquoson-va.gov or come speak at the public hearing that night.  Following is some information on the Legacy project along with all 6 requests by The Big Woods Development Company.  I’ve added some information after each item and my personal thoughts/comments on each item.  The facts stated are how I understand them based on all information I have gathered and discussions to date with city staff.  I will update/correct as necessary if I receive additional information. I am still gathering and studying information and hearing opinions from citizens and have not decided how I will vote on each item.  This will not come before City Council until the Planning Commission votes on a recommendation, which will not happen until their October 21st meeting.  So, there is a month or more before City Council will vote on these requests.  This is A LOT of information, but I hope it will be helpful and worth the read, so grab a cup of your favorite beverage and get comfortable!

General: The current Ordinance 8.4-5 for the PUD – Mixed Use Overlay District where Legacy lies states, “A 40-foot wide landscaped or naturally wooded buffer shall be maintained around the perimeter of the project area and can be included in the open space requirement.”.  It goes on to state, “However, the perimeter buffer cannot be waived if an adjoining parcel is developed per the uses allowed in the respective underlying zoning district unless said adjacent parcel has been developed for commercial purposes, in such case council may allow for a buffer reduction of up to 20 feet.”.  Based on Legacy’s surrounding properties, the buffer cannot be waived.  However, in 2015 the developer requested “modifications” based on Ordinance 8.2-2  which states, “The regulations in article VII.2 shall apply to the establishment and regulation of all planned development districts.   If the applicant requests such a waiver or modification as part of the master plan, the applicant shall submit the request in writing as part of the application, and shall demonstrate that the waiver or modification would not adversely affect the public health, safety or general welfare and, in the case of a requested modification, that the public purposes of the original regulation would be satisfied to at least an equivalent degree by the modification.”  Because they requested a “modification” rather than a “waiver” the then City Council approved a reduction of the 40’ perimeter buffer to 0’ along the back of the property bordering Woods of Tabb (58,800 sf or 1.35 acres) and adjacent to the back of the City Hall property (19,600 sf or .45 acres), moving the buffer in both locations into proposed homeowner lots.  In addition, the then City Council also approved a reduction in the buffer along Victory Blvd. from 60’ to 25’  (50,400 sf or 1.16 acres) and an increase in the number of stories for the apartments from 3 to 4.  Shown on map by red lines here. Note: there is a city right of way approximately 40’ along Victory in addition to the 25′ buffer.  That area will look similar to the current building at the corner of City Hall Avenue and Victory.

My thoughts/comments:  There are clearly some issues with our ordinances that need to be rectified.  If Ordinance 8.4-5 states that no waiver can be granted for buffers under certain circumstances, there should not be another ordinance that can supersede that by allowing a requester to use the word “modification” rather than “waiver” in their request.  That is just semantics and Ordinance 8.4-5 was written with the “no waiver” wording for a reason.

Request #1: Request for a proffer amendment to change the timeline in which the community clubhouse and pool must be constructed from prior to the 80th single family and/or town home building permit to prior to the 147th single family and/or town home building permit.  Phase I contains 146 town homes and single family homes.

What this means:  Currently, Phase I of the development contains 146 units.  The current proffers approved for the development require the clubhouse, pool and road to access them be constructed before a building permit will be issued for the 81st unit.  The developer is requesting it be changed so construction will take place prior to the 147th unit being built.  The 147th unit would be the first unit built in Phase II of the development.

What the developer has stated:  The developer states this is necessary due to the litigation and mitigation costs incurred to obtain wetlands permits and higher than expected Phase I development bids due to the delay.  The road, clubhouse, and pool would cost approximately $1M, which would also then require the developer to pay the wetlands credits, also totaling approximately $1M prior to the 80th unit being constructed. They want to delay construction until after prior to the 147th unit in Phase II to realize all the revenue from Phase I to help with these costs.

City Council vote:  A YES vote means the developer will delay payment of the wetlands credits and construction of the pool/clubhouse/road be built prior to the 147th unit in Phase II.  A NO vote means the developer will be required to abide by the current proffer requiring the payment of the wetlands credits and construction of the pool/clubhouse/road prior to construction of the 80th home in Phase I.

My thoughts/comments:  Some are concerned that Phase II may not be built leaving a community of 146 homes without the promised pool and clubhouse.  The developer insists that Phase II and III will be built because they would lose a lot money on the project if it wasn’t since most profit comes at the end of the project once it’s built out.  I do hope that is the case.  But nobody can see the future and economic downturns or a myriad of other unforeseen circumstances which could cause Phase II and/or Phase III to go unbuilt or be delayed for any number of years.  I can’t see the future and neither can the developer, so they can’t make promises on the future.  I like to plan for the worst, but hope for the best.  So, I would be willing to compromise and consider changing the proffer to require the clubhouse/pool be built prior to the 146th unit being constructed, allowing the developer to recognize all the revenue from Phase I before building it instead of only about 55% as is required now, but still ensure the pool, clubhouse, and road is built during Phase I.  During the planning commission meeting the developer stated, “In reality what will happen, we’ll probably get to 80 and we may continue to build after 80, but we may start phase II at right 80 because its going to take about a year to get the plans approved for section II, which we’re working on now, and to build the road and then build the clubhouse.  That will take about a year.  So they will still be building in phase I after 80, at the same time the improvements will be going in to get to the clubhouse and building the boulevard going to the clubhouse.”, If that is the case, then it shouldn’t be an issue to construct the pool, clubhouse and road at the end of Phase I just prior to Phase II, since that is what he is suggesting will happen anyway.  I feel this gives some assurances that the pool/clubhouse/road will be built and not delayed due to any unforeseen delay of Phase II of the project.

Request # 2:  Request for a rezoning amendment to approve town home elevations that were not submitted with the original set of approved elevations.

What this means:  When the master plan was approved, there was only 1 elevation (style) of town home submitted by H. H. Hunt, the home builder for the project.  They have now added Ryan Homes and would like to add several other styles of town homes in addition to the original elevations that were submitted. Original elevation here.  Additional elevations here.

What the developer has stated:  The developer states this will provide more variety of town home types and various price points to appeal to a larger number of buyers.  The letter from staff to the planning commission stated that the original renderings, based on the drawings, were more upscale in appearance and, perhaps, more expensive in price than are the architectural drawings being considered as part of the rezoning amendment.

City Council vote:  A YES vote means there will be additional town home elevations (styles) permitted. A NO vote means only the one town home elevation submitted with the master plan in August 2015 will be permitted.

My thoughts/comments:  A variety is good.  Varied price points, some lower is good.  If this is supposed to be a development to attract people to Poquoson, or provide the younger generations of Poquoson residents affordable homes to stay in the city this is a good thing.  I think all the elevations look attractive.

Request # 3: Request for a buffer modification to Area #1 on the submitted Legacy of Poquoson Master Plan to reduce the 40-foot perimeter buffer to 10 feet, which area may be included in recorded lots, but which shall remain undisturbed.

What this means:  The developer is requesting the required 40′ perimter buffer be changed to a 30′ undisturbed buffer in the homeowner lots and a 10′ perimeter buffer in Area 1. This buffer reduction would be a possible reduction of 87,600 s.f (2.02 acres) of tree buffer.  Shown on map by yellow line here.

What the developer has stated:  The master plan approved in 2015 contained a total of 238 single family, 108 town homes, 11 cottages, 200 apartments.  The required perimeter buffer per the ordinance was 40’ in this area. The developer has stated several times there was a “miscommunication” with city staff and the number of units submitted was based on their understanding there was not a 40’ perimeter buffer in that location because it was abutting undeveloped property.  If the 40’ perimeter buffer is required, they would have to reduce the number of single family homes in Area 1 by 8 from the original 238 single family homes submitted. These saved lots would help to offset losses in other areas due to required design modifications.

City Council vote: A YES vote means the developer will be permitted to move 30′ of the required 40′ perimeter buffer into homeowner lots leaving a 10′ perimeter buffer. A NO vote means the developer will have to abide by the current 40′ perimeter buffer requirement in the ordinance and reduce the single family homes by 8 from the original 238 single family homes submitted in the original master plan.

My thoughts/comments: Per the developer’s statement at the planning commission, the reduction of 30′ in perimeter buffer would become part of the lots in that area, not part of an HOA, and would remain undisturbed.  However, if it becomes part of the homeowner’s lots, there is no way the developer can guarantee individual homeowners will keep that as an undisturbed area.  Any type of wording added to a city ordinance requiring this would not be enforced unless there was a complaint, as is the case with many of our ordinances.  Our city is not staffed to a capacity which would allow staff to drive around the city and inspect properties for compliance with all ordinances.  And if the complaint comes after trees are cut down, there is no way the city can rectify that.  So, there is no way the city can guarantee the 30’ of buffer will remain undisturbed.  In addition, Mr. White who owns the property adjacent to this property spoke at the planning commission public hearing in opposition to this reduction. To hear his comments, you can view the meeting on-line here. Whether Mr. White ever chooses to develop his property or not, he has rights as an adjacent landowner and to protect that property for any future generations who may choose to develop it. See “Overall thoughts/comments” at the end of this post for my additional thoughts/comments on the developer’s position.

Request # 4: Request for a buffer modification to Area #2 on the submitted Legacy of Poquoson Master Plan to reduce the 40-foot perimeter buffer to 10 feet, which are may be included in recorded lots, but which shall remain undisturbed. UPDATE – the developer withdrew this request

Request # 5: Request for a buffer modification to Area #3 on the submitted Legacy of Poquoson Master Plan to reduce the 40-foot perimeter buffer to 5 feet in order to provide room for the development of the commercial space located along a portion of the Victory Boulevard frontage as well as the require parking to serve this commercial space.

What this means:  The developer is requesting the required 40′ perimeter buffer be changed to a 5′ buffer in Area 3. This buffer reduction would be a reduction of 13,128 s.f (.301 acres) of tree buffer.  Shown on map by blue line here.

What the developer has stated: The master plan that was approved in 2015 contained a total of 40,000 s.f. of commercial space. The required perimeter buffer per the ordinance was 40’ in this area. The developer has stated several times there was a “miscommunication” with city staff and the commercial section in Area 3 was based on their understanding there was not a 40’ perimeter buffer in that location because it was abutting undeveloped property.  If the 40’ perimeter buffer is required, they would be unable to build a large majority of commercial space and parking.  The developer also states that the Tudor property that is currently undeveloped would likely be developed commercial and therefore a buffer between two commercial spaces would serve no useful purpose. Granting this modification would help offset some of the increased costs without negatively impacting adjacent properties.

City Council vote: A YES vote means the required 40′ perimeter buffer will be reduced to 5′ and a loss of 13,128 s.f (.301 acres) of trees. A NO vote means the developer will have to abide by the current 40′ perimeter buffer requirement in the ordinance and eliminate a large part of the commercial property and parking.

My thoughts/comments There has been no comment by Mr. Tudor the adjacent property owner, but I have asked city staff to reach out to find out if he has any objections. The options here are either to approve the buffer reduction or lose a large part of the commercial property.  While I don’t want to give an exception/waiver/modification (whatever you want to call it) to our ordinance to rectify a developer’s mistake, it does hurt the city of Poquoson to lose commercial property which would bring in needed tax revenues (assuming it isn’t filled with businesses moving from other locations within Poquoson). 

Request # 6: Request for a buffer modification to Area #4 on the submitted Legacy of Poquoson Master Plan to reduce the 40-foot perimeter buffer to 5 feet in order to provide for a “T” turnaround at the terminus of Street A as shown on the Master Plan. The 5’ buffer would be maintained as grass.

What this means:  The developer is requesting the required 40′ perimeter buffer be changed to a 5′ perimeter buffer in Area 4. This buffer reduction would be a reduction of 35,000 s.f (.803 acres) of tree buffer. Shown on map by orange line here.

What the developer has stated:  The master plan approved in 2015 contained a total of 238 single family, 108 town homes, 11 cottages, 200 apartments.  The required perimeter buffer per the ordinance was 40’ in this area. The developer has stated several times there was a “miscommunication” with city staff and the number of units submitted was based on their understanding there was not a 40’ perimeter buffer in that location because it was abutting undeveloped property.   If the 40’ perimeter buffer is required, they would have to reduce the number of lots in Area 4 by 1-2 town homes from the original 108 town homes submitted. These saved lots would help to offset losses in other areas due to required design modifications.

City Council vote: A YES vote means the developer will be permitted to move 35′ of the required 40′ perimeter buffer into homeowner lots leaving a 5′ perimeter buffer. A NO vote means the developer will have to abide by the current 40′ perimeter buffer requirement in the ordinance and reduce the town home by 1-2 from the original 102 town homes submitted in the original master plan.

 My thoughts/comments:  If the buffer reduction is granted, the T-turnaround will be approximately 5’ from the edge of the ditch (Oxford Run), but approximately 20’ from the center.  The T-turn around is needed for emergency vehicles to have sufficient access to the town homes since that street is the only access to the town homes at the end of the street.  For those reasons, removing the T-turnaround isn’t an option.  I understand the importance of the T turn around, but it is also not the city’s responsibility to provide that at the expense of losing perimeter buffer because of the developer’s misunderstandings of the buffer requirements in the ordinance that governs their property.  See “Overall thoughts/comments” at the end of this post for additional thoughts/comments on the developer’s position.

Overall thoughts/comments: The Big Woods Development Company is part of a large development company (Mid-Atlantic) with experience.  Per the developer, they have been in business for 30 years and done over 60 developments.  For them to draw a master plan with homes, commercial space and a needed T intersection that can’t fit within the buffer requirements in the city ordinance was their mistake.  It is the developer’s responsibility to do their due diligence and look at the ordinance for the property they purchased, know what the requirements are, and design their development within those constraints.  It certainly rubs me the wrong way and is not fair for them to continue to suggest our city staff has any responsibility for their misunderstanding/mistake.  While I understand and empathize with the developer’s dilemma, their financial situation or mistakes in submitting their master plan which may cause loss of profit to them are not my responsibility to rectify as a member of City Council.  My responsibility and concern is what is best for Poquoson and its citizens.

I am not anti-development. Probably not in my lifetime, but in the future Poquoson will start to lose housing and commercial space near the water due to sea level rise and need more housing and commercial in the front parts of Poquoson.  That is a reality and something we need to plan for. The property owners who sold their property to The Big Woods Development Company had every right to do so and nobody has the right to force them to keep property undeveloped.  I, as a homeowner, would not want to be told I couldn’t sell my property. Almost every citizen who lives in a home in Poquoson has had trees cut down or farmland paved over to create their neighborhood.  So, it’s hypocritical to say it’s OK for trees to be cut down and roads put in for my house to be built, but no other land can have trees cut down or roads put in for other people to move here.  The individuals who owned that property had a chance to sell highly unsalable land and took that opportunity to benefit their families.  I don’t fault them for that. If there were citizens or organizations who were in objection to the Big Woods being developed, they should have joined together and bought that property so it would remain undeveloped.

I realize this is a hard issue which evokes lots of emotions for good reason.  I am looking at each request in an objective manner, taking citizen comments and the planning commissions recommendations into account and will decide what I think is the best decision for our city.  I have not made up my mind and am still processing and gathering information and will continue to do that until City Council votes on the items.  So, if you haven’t sent in your opinion on the requests, no matter what they are, please do that now. The sooner the bodies making recommendations and decisions have your input the longer they have to consider them. Comments to City Council can be sent to Evie.Insley@poquoson-va.gov  I know I and my fellow councilmen would welcome citizen input.  I know not everyone will agree with every vote I make and I am only one person on City Council, but I am doing what I was elected to do.  That is serve the citizens of Poquoson.

Thank you,

Jana Andrews

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