The director is charged with the responsibility for the administration of this ordinance.

In the administration of this ordinance the director's duties and authority shall include, without limitation:

(A)

Receiving applications for development approval;

(B)

Reviewing applications to determine if they contain all information required and necessary for a determination of their merit;

(C)

Reviewing applications to determine their compliance with the provisions and intent of this ordinance and their merit;

(D)

Docketing items for hearing before the planning commission and conferring with the city manager to schedule public hearings before the city council as necessary on applications;

(E)

Preparing a staff report for each application;

(F)

Interpreting the provisions of this ordinance to ensure that its intent is carried out; and

(G)

Enforcing this ordinance, pursuant to section 11-200.

The director shall promulgate rules and procedures for the processing of applications that ensure full review, comment and recommendations on each application by the department of planning and zoning. The city manager shall promulgate rules and procedures for review of applications by other departments where such review is determined to be necessary or desirable and such procedures may include the establishment of a development review committee composed of departments of the city whose expertise is necessary or desirable in the review of applications.

The director shall by general rule approved by city council establish a schedule of fees required for each application for development approval to be paid at the time an application is submitted.

Notwithstanding any other provisions of this ordinance, the director shall have the authority, as qualified below, to approve a reduction in the minimum yard or setback requirements established by the applicable zone or other regulations in this ordinance in the case of any building existing or partially constructed which does not comply with such requirements applicable at the time such building was erected. Such a reduction may be approved by the director in accordance with the following provisions:

(A)

The director determines that:

(1)

The error does not exceed ten percent of the measurement that is involved, or six inches, whichever is smaller;

(2)

The error was made in good faith, or through no fault of the property owner, or was the result of an error in the location of the building subsequent to the issuance of a building permit, if such was required;

(3)

The reduction will not impair the purpose and intent of this ordinance;

(4)

The reduction will not be detrimental to the use and enjoyment of other property in the immediate vicinity;

(5)

The reduction will not create an unsafe condition with respect to other property or public streets;

(6)

To force compliance with the minimum yard and setback requirements would cause unreasonable hardship on the owner; and

(B)

In approving a reduction under this section 11-105, the director shall allow only that reduction necessary to provide reasonable relief and, as deemed advisable, may prescribe such conditions, to include landscaping and screening measures, to assure compliance with the purpose and intent of this ordinance.

(C)

On the approval of a reduction for a particular building in accordance with the provisions of this section 11-105, the building shall be deemed to be lawful.

(Ord. No. 3774, § 2, 1-21-95; Ord. No. 3807, § 3, 6-17-95)

The director and the building or code official shall have the authority and the responsibility to ensure that all buildings and structures and the use of all land complies with the provisions of this ordinance.

The director and the building or code official or any authorized assistant thereof, upon proper notice, shall have the right to enter all premises in the city to make an inspection or acquire information in order to determine whether or not the premises and use of the premises comply with the provisions of this ordinance and the right to apply to an appropriate court for the issuance of a warrant for same.

(A)

Any building or structure erected contrary to any of the provisions of this ordinance and any use of any building or land which is conducted, operated or maintained contrary to any of the provisions of this ordinance or the provisions of any approval granted under this ordinance shall be a violation of this ordinance and the same is hereby declared to be unlawful.

(B)

Any person, whether owner, lessee, principal, agent, employee or otherwise, who violates any of the provisions of this ordinance, or permits any such violation, or fails to comply with any of the requirements hereof, or who erects any building or structure or uses any building, structure or land in violation of the provisions of this ordinance or the provisions of any approval granted under this ordinance shall be subject to the enforcement provisions of this section 11-200.

(C)

In addition to the remedies provided in this section 11-200, the director may initiate injunction, mandamus, abatement or any other appropriate action to prevent, enjoin, abate or remove any unlawful building, structure or use.

(A)

If an authorized official shall find that any of the provisions of this ordinance are being violated, he may notify in writing the owner of the property, his agent, or those persons who control or maintain the property responsible for such violation, indicating the nature of the violation, and, where the violation is correctable, ordering the action necessary to correct it. He may order discontinuance of illegal use of land, buildings or structures; removal of illegal buildings or structures or of additions, alterations or structural changes thereto; discontinuance of any illegal work being done; or may take any other action that is necessary to correct the violation.

(B)

If the violation of the ordinance is not corrected within ten days of the day that notification of violation was given, the official may cause appropriate action or proceedings to be instituted and prosecuted to prevent such unlawful act and to restrain, correct or abate such violation or to prevent any unlawful act, conduct or use of such property.

In addition to any other remedy provided in this section 11-200, development approval may be suspended or revoked as follows:

(A)

In the event any person, whether owner, lessee, principal, agent, employee or otherwise, materially fails to comply with any statute, code, ordinance or regulation pertaining to the use or development of any land for which an approval has been granted under the provisions of this ordinance, or materially fails to comply with any condition proffered or required by the approving agency as part of such approval, the director may suspend or revoke such approval in whole or in part and on such terms and conditions as he deems necessary to effect the cure of such failure to comply.

(B)

In the event the director suspends or revokes any approval which has been granted under the provisions of this ordinance, the applicant or his successor in interest may appeal such suspension or revocation by filing a written notice of appeal with the director, within 15 days of such suspension or revocation, which notice of appeal shall set forth in detail the grounds, if any there be, why such suspension or revocation should be modified or reversed. The appeal shall be heard by the agency that granted the approval in question unless the approval was one granted by the director in which case the appeal shall be heard by the board of zoning appeals. The director shall schedule a public hearing on such appeal, and shall cause notice of such public hearing to be given in accordance with the provisions of section 11-300. On appeal, the director's action may be affirmed, reversed or modified or the matter may be returned to the director for further consideration.

(C)

In the event the suspension or revocation of approval entered by the director is affirmed or modified, the applicant or his successor in interest may appeal the decision to the city council. In the event the suspension or revocation is reversed or modified, the city manager or 25 property owners aggrieved by the decision may appeal the decision to the city council. Following the filing of an appeal by such owners, the department of planning and zoning shall verify that those filing are legal property owners. The appeal provided for in this paragraph is not available if city council or the board of zoning appeals was the appellate body under section 11-205(B) above.

(D)

Any appeal under section 11-205(C) shall be made in writing and filed with the city clerk within 15 days from the date of the decision on appeal. In the event such an appeal is filed, the city council shall schedule at least one public hearing on the matter and may affirm, reverse or modify the appellate decision or return the matter to the appeals body for further consideration. Notice of the public hearing before council on any such appeal shall be given in accordance with the provisions of section 11-300.

(E)

Pending the outcome of any appeal filed under section 11-205(B) and pending the expiration of the appeal period provided in section 11-205(C) or the outcome of any appeal filed under section 11-205(C), as the case may be, the decision of the director shall remain in force and effect.

Any person who, as the owner of any land, building or structure, or the agent thereof having possession or control of such property as employee, lessee, tenant, architect, builder, contractor or otherwise, knowingly commits, permits, assists in or attempts any violation of this ordinance, whether by act or omission, which violation results in the injury or death of any person, or knowingly refuses or neglects to comply with any written order issued pursuant to this ordinance by the director to abate any violation of this ordinance, shall be guilty of a class one misdemeanor.

(A)

General. Any person who, as the owner of any land, building or structure, or the agent thereof having possession or control of such property as employee, lessee, tenant, architect, builder, contractor or otherwise, who commits, permits, assists in or attempts any of the following violations of this ordinance, whether by act or omission, shall be liable for a civil violation as follows:

(1)

Violation of any use or occupancy regulation or performance standard applicable under this ordinance, including the failure to obtain a special use permit where so required: class five civil violation.

(2)

Violation of any frontage regulation applicable under this ordinance: class five civil violation.

(3)

Violation of any yard regulation applicable under this ordinance: class five civil violation.

(4)

Violation of any floor area ratio regulation applicable under this ordinance: class five civil violation.

(5)

Violation of any coverage, open space or landscaping regulation applicable under this ordinance: class five civil violation.

(6)

Violation of any height regulation applicable under this ordinance: class five civil violation.

(7)

Violation of any off-street parking or loading regulation applicable under this ordinance: class five civil violation.

(8)

Violation of any floodplain district regulation applicable under section 6-300 of this ordinance: class five civil violation.

(9)

Violation of any sign, marquee and awning regulation applicable under sections 9-100, 9-200 or 9-400 of this ordinance: class five civil violation.

(10)

Violation of any specific statement, proffer, representation or plan made or submitted in connection with any application, permit or approval granted under the provisions of this ordinance, and violation of any condition imposed by the approving authority: class five civil violation.

(11)

Violation of any regulation of this ordinance punishable as a civil violation and not set forth above and not subject to section 11-207(B): class five civil violation.

(12)

The transfer, sale, offer to sell, or agreement to sell any land or portion of land by reference to or display of an unapproved and unrecorded plat, regardless of whether the land is described by metes and bounds; class five civil violation.

(B)

Historic districts. Any person who, as the owner of any land, building or structure located within the Old and Historic Alexandria District, the Parker-Gray District, or listed for preservation pursuant to section 10-300 of this ordinance, or as the agent thereof having possession or control of such property as employee, lessee, tenant, architect, builder, contractor or otherwise, commits, permits, assists in or attempts any violation of article X or section 9-300 of this ordinance, whether by act or omission, shall be liable for a civil violation as follows:

(1)

Violation of any sign, marquee, or awning regulation of section 9-300 of this ordinance: class four civil violation.

(2)

Violation of section 10-103(A), 10-203(A) or 10-304, involving the construction, alteration or repair of a building or structure for which no building permit under the Uniform Statewide Building Code is required: class three civil violation.

(3)

Violation of section 10-103(A), 10-203(A) or 10-304, involving the construction, alteration or repair of a building or structure for which a building permit is required under the Uniform Statewide Building Code: class two civil violation.

(4)

Violation of section 10-103(B), 10-203(B) or 10-305, involving the unauthorized demolition of any building or structure: class one civil violation.

(C)

Penalties.

(1)

For a class one civil violation, the penalty for each individual offense shall be $5,000.00.

(2)

For a class two civil violation, the penalty for each individual offense shall be $1,000.00 for the first violation, $1,500.00 for the second violation of the same regulation or requirement arising from the same set of operative facts, and $2,500.00 for each additional violation of the same regulation or requirement arising from the same set of operative facts.

(3)

For a class three civil violation, the penalty for each individual offense shall be $200.00 for the first violation, $500.00 for the second violation of the same regulation or requirement arising from the same set of operative facts, and $1,000.00 for each additional violation of the same regulation or requirement arising from the same set of operative facts.

(4)

For a class four civil violation, the penalty for each individual offense shall be $200.00 for the first violation, and $500.00 for each additional violation of the same regulation or requirement arising from the same set of operative facts.

(5)

For a class five civil violation, the penalty for each individual offense shall be $200.00 for the first violation, and $500.00 for each subsequent violation of the same regulation or requirement arising from the same set of operative facts; provided, however, that in the case of a third violation of a special use permit condition within any one 12-month period, the penalty shall be $1,000.00.

(6)

Each day during which any class one civil violation exists shall constitute a separate individual offense. A class one civil violation shall be deemed to exist until such time as the director certifies to the board of architectural review that the unlawfully demolished building or structure has been reconstructed to the pre-existing footprint, envelope, configuration and appearance, using original materials and techniques of construction to the extent possible; provided, however, that, after a public hearing for which notice has been given pursuant to section 11-300, the board of architectural review may determine that a class one civil violation shall cease to exist at such time as the person responsible therefor shall have paid to the city a sum equivalent to the cost of reconstruction required under this section 11-207(C)(6), such sum to be used exclusively for the purpose of promoting historic preservation within the city as determined by the director. The civil penalty for a class one violation shall in no case exceed the market value of the property, which shall include the value of any improvements together with the value of the land upon which any such improvements are located, and shall be determined by the assessed value of the property at the time of the violation.

(7)

Each day during which any class two or three civil violation exists shall constitute a separate individual offense. In no event will any such violation arising from the same set of operative facts be charged more frequently than once in any ten-day period.

(8)

Each day during which any class four or five civil violation exists shall constitute a separate individual offense. In no event will any such violation arising from the same set of operative facts be charged more frequently than once in any ten-day period. In no event shall a series of charges for the same class five civil violation arising from the same set of operative facts result in civil penalties which exceed a total of $5,000.00.

(D)

Procedures.

(1)

If the director determines that a civil violation enumerated in section 11-207(A) or (B) has occurred, he may cause a notice of the violation to be served on any or all persons committing or permitting such violation.

(2)

The notice shall provide that the person served may elect to make an appearance in person, or in writing by mail, to the treasurer of the city, and admit liability for or plead no contest to the violation, abate the violation, and pay the civil penalty established for the violation, all within the time period fixed in the notice.

(3)

If a person charged with a violation does not elect to admit liability or plead no contest, and abate the violation, the violation shall be tried in the Alexandria General District Court upon a warrant in debt or motion for judgment, with the same right of appeal as provided for civil actions at law. In the event the violation exceeds the jurisdictional limits of the General District Court, the violation shall be tried in the Alexandria Circuit Court. In any such proceeding, the interpretation of the zoning ordinance made by the director, by the board of zoning appeals, or by the Alexandria Circuit Court on writ of certiorari to the board of zoning appeals, as the case may be, shall be conclusive.

(4)

A finding or admission of liability or a plea of no contest to a civil violation shall not be deemed a criminal conviction for any purpose.

The remedies provided in this section 11-200 are cumulative and not exclusive, and the designation of any violation of the provisions of this ordinance as a criminal misdemeanor or civil violation shall not be construed as prohibiting city officials from initiating appropriate administrative or civil procedures to prevent, correct, restrain or abate violations of this ordinance.

The repeal of former zoning code section 7-6-190.4 and section 7-6-214, effective as of October 13, 1990, shall not affect any act or offense done or committed, or any penalty incurred, or any right established or accrued on or before such date, or any proceeding, prosecution, suit or action pending on that date. Neither the repeal of said section 7-6-190.4 or said section 7-6-214, nor the enactment of new sections 11-206 through 11-208 or their immediate predecessors, shall apply to offenses committed prior to October 13, 1990, and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purpose of this section 11-209, an offense was committed prior to October 13, 1990, if any essential element of the offense occurred prior thereto.

(Ord. No. 3774, § 2, 1-21-95; Ord. No. 3845, § 1, 2-24-96; Ord. No. 3999, §§ 1—3, 5-16-98; Ord. No. 4356, § 1, 6-12-04; Ord. No. 5545, § 1, 6-15-24)

Except as provided in section 11-302 below, written notice, placard notice and newspaper notice shall be given before each public hearing before the planning commission, the city council, the board of zoning appeals, the subdivision committee and the board of architectural review.

(A)

Written notice. For hearings before the planning commission, the city council, the board of zoning appeals and the subdivision committee, the applicant shall, by registered or certified mail, send written notice at least ten and no more than 30 days prior to the hearing. Restricted delivery or return receipt is not required. For hearings before the board of architectural review, the applicant shall, by first class mail, send written notice at least ten and no more than 30 days prior to the hearing.

(1)

Recipients of written notice. Written notice shall be sent to the owner of the subject property, if different from the applicant, and to the owners of all abutting property. In the case of a condominium, written notice may be sent to the president of the board of the unit owners' association instead of to each individual unit owner.

(2)

Contents of written notice. Written notice shall contain the following information:

(a)

The time, date and place of all hearings scheduled; and

(b)

A description of the matter being heard, including the tax map number of the property and complete street address of the property.

(3)

Certification. At least five days prior to the hearing, the applicant shall supply the director with a copy of the notice, the names of those persons to whom notice has been given, and copies of the post office receipts for registered or certified mail, if registered or certified mail is required, and shall certify that notice has been sent to those to whom notice is required to be given. The applicant shall use the records and maps maintained by the city's office of real estate assessments to determine the proper recipients of notice and reliance upon such records shall constitute compliance with the requirements of this section 11-301(A).

(4)

Waiver of notice. A person's actual notice of, or participation in, the proceedings for which written notice is required to be provided by this section shall waive the right of that person to challenge the validity of the proceedings based on a failure to receive such written notice. Any person entitled to receive notice under this section may waive the right to notice by filing a waiver in writing with the director prior to the hearing. No waiver shall be accepted for an applicant's failure to file or to timely file a required certificate.

(5)

Failure to receive notice. Failure to receive any notice required by this section shall not by itself invalidate any action taken at the hearing for which notice was given.

(B)

Placard notice. The city shall post placards at least ten days and no more than 30 days prior to the hearing.

(1)

Location of placards. Placards shall be posted along all street frontages of the property in question with the number of placards posted depending upon the length of street frontage on the lot in question.

(2)

Contents of placards. Placards shall contain:

(a)

The time, date and place of all hearings scheduled; and

(b)

A description of the matter being heard.

(3)

Removal of placards. The city shall remove all posted placards no later than seven days after a final determination has been made on the application in question.

(4)

Destruction of placards. It shall be unlawful for any unauthorized person to destroy, deface or remove such placard notice. Any person taking such action shall be subject to the penalties set forth in section 11-200 of this ordinance.

(C)

Newspaper notice. The director shall give newspaper notice at least ten days and no more than 30 days prior to the hearing.

(1)

Type of newspaper. Notice shall be published in a newspaper of general circulation in the city.

(2)

Contents of newspaper notice. The notice shall contain:

(a)

The time, date and place of all hearings scheduled; and

(b)

A description of the matter being heard.

The following particular public hearings require only the following form of notice:

(A)

Appeals to city council. Public hearings held on appeals to city council require that the city provide placard notice and newspaper notice of the hearing, as well as written notice to the applicant, the appellant, the recipients of written notice identified pursuant to paragraph (A)(1) of section 11-301 who were sent notice of the hearing before the board or commission from which the appeal was taken, and to persons who are subscribers pursuant to section 11-304. In the case of an appeal brought by a petition of property owners, the petitioners shall designate, in writing to the city clerk, one representative who shall be the recipient of written notice to the appellant. In the absence of such designation, the first name listed on the petition, as determined by the city clerk, shall be the recipient of such notice.

(B)

Text amendments. Public hearings on zoning amendments to change, alter, modify or repeal the provisions of the text of this ordinance require that the city provide newspaper notice of the hearing.

(C)

New zoning ordinance or map. Public hearings on the adoption of a new zoning map, a substantially revised zoning map (one which revises the zoning of 500 or more parcels of land), or new or substantially revised regulations for the city as a whole or for the territory included within a small area plan adopted as part of the official master plan of the city require that the city provide newspaper notice of the hearing.

(D)

Master plan amendment. Public hearings on the adoption of a new or substantially revised official master plan for the city as a whole or for the territory included within a small area plan adopted as part of the official master plan of the city require that the city provide newspaper notice of the hearing.

(E)

Rezoning of 25—500 parcels. Public hearings on a rezoning that involves more than 25 but fewer than 500 parcels of land require that written notice be sent by first class mail.

(F)

City initiated applications. Public hearings on a matter initiated by the city, for which the city sends written notice, require that written notice be sent by first class mail, provides that the responsible city employee shall make an affidavit that such mailing has been made, and file same with the papers in the case.

(G)

City provided written notice. The director shall be responsible for providing the written notice, in addition to the placard and newspaper notice, in the case of an appeal to the board of zoning appeals, the recommended revocation of a special use permit or an appeal to city council.

(A)

Deferral or continuance. For hearings before the planning commission, the city council, the board of zoning appeals and the subdivision committee, if an item is deferred or continued at the time of the public hearing, then all notices required by this section 11-300 shall be given prior to any subsequent public hearing as if it were a new item. For hearings before the board of architectural review, if an item is deferred or continued at the time of the public hearing for a period which exceeds 30 days, then all notices required by this section 11-300 shall be given prior to any subsequent public hearing as if it were a new item.

(B)

Referral. If a zoning amendment is referred by the city council back to the planning commission, all notices required by this section 11-300 shall be given prior to any subsequent public hearing as if the referred item were a new item.

(C)

Rescheduled hearing. If the date for a public hearing is changed after notice has been given of the original date and prior to the hearing, all notices required by this section 11-300 shall be given for the rescheduled hearing as if it were a new item.

(D)

Development site plans and development special use permits. In addition to the notice required by section 11-301, applicants for development site plans and development special use permits, as defined by the director, shall place signs along all street frontages of the development site within five working days of the director's determination that the application is complete.

(1)

The signs will clearly indicate that an application has been filed to develop the subject property and shall include a description of the proposed development and contact information for the applicant, in such number, format and size, all as reasonably determined by the director.

(2)

The applicant shall reasonably ensure that the required signs remain on display until the public hearings on the application.

(3)

As part of the certification of written notice required by section 11-301(A)(3), the applicant shall submit an affidavit to the director stating:

(i)

That the required signs have been posted;

(ii)

That such signs have, as of the date of the affidavit, remained on display; and

(iii)

That the applicant shall maintain such signs on display until the conclusion of the public hearing process.

Notice of the docket of the public hearings pending before the planning commission, city council, board of zoning appeals and board of architectural review will be mailed to any person who obtains a subscription for same by paying the established annual fee.

(Ord. No. 3781, §§ 1—3, 2-25-95; Ord. No. 4000, § 1, 5-16-98; Ord. No. 4271, § 1, 10-19-02; Ord. No. 4281, § 2, 11-16-02)

As used in this section 11-350:

(A)

"Business or financial relationship" means a relationship that a member of a city approving body or any member of his immediate household has, or has had within the 12-month period prior to a hearing on an application, with the applicant in the case, or with a party with an ownership interest in the applicant or the property that is the subject of the application. This relationship may be:

(1)

A direct one;

(2)

By way of an ownership entity in which the member or a member of his immediate household is a partner, employee, agent or attorney;

(3)

Through a partner of the member or a member of his immediate household;

(4)

Through a corporation in which any of them is an officer, director, employee, agent or attorney or holds three percent or more of the outstanding bonds or shares of stock of a particular class. In the case of a condominium, this threshold shall apply only if the applicant is the title owner, contract purchaser, or lessee of three percent or more of the units in the condominium.

(5)

Not as an ordinary customer or depositor relationship with a professional or other service provider, retail establishment, public utility or bank, which relationship shall not be considered a business or financial relationship.

(6)

Created by the receipt by the member, or by a person, firm, corporation or committee on behalf of the member, of any gift or donation having a value of more than $100.00, singularly or in the aggregate, during the 12-month period prior to the hearing on the application from the applicant.

(B)

"City approving body" means city council, the planning commission, the board of zoning appeals, and the boards of architectural review.

(C)

"Application" means any application for any land use or land development approval submitted pursuant to this ordinance which will be considered by a city approving body.

(D)

"Ownership interest" in the applicant or the real estate that is the subject of the application means those parties required to be identified under section 11-406(A) of this ordinance.

(E)

"Immediate household" means (i) a spouse or life partner and (ii) any other person residing in the same household as the member, who is a dependent of the member or of whom the member is a dependent. "Dependent" means a son, daughter, father, mother, brother, sister or other person, whether or not related by blood or marriage, if such person receives from the member, or provides to the member, more than one-half of his financial support.

(A)

Each application shall identify any party having an ownership interest in the applicant or the real estate that is the subject of the application.

(B)

A party having an ownership interest in the applicant or the real estate that is the subject of an application shall make full public disclosure of any business or financial relationship that the party has at the time of the application, or has had within the 12-month period prior to the submission of the application, with any member of a city approving body.

(C)

A party acquiring an ownership interest in the applicant or the real estate that is the subject of any application shall have an affirmative duty to make full public disclosure of that as soon as is reasonably possible after such acquisition, and must be disclosed prior to any public hearing on the application.

(D)

Any disclosure required by this section shall be in the manner and on the forms provided by the director.

(E)

No disclosure shall be required when the applicant is the federal government, a state, or a political subdivision of the Commonwealth of Virginia.

Any member of a city approving body who has or has had a business or financial relationship subject to the disclosure requirements of section 11-350 shall be ineligible to vote or participate in any way in consideration of the application. A member of a city approving body who has received a campaign contribution is eligible to vote or participate in consideration of the application if the contribution has been disclosed as required by law.

Any person who knowingly and willfully violates the provisions of this section 11-350 shall be guilty of a Class 1 misdemeanor.

The provisions of this section preempt any conflicting provisions of law, general or special, except that any provision of the State and Local Government Conflict of Interests Act, (§ 2.2-3100 et seq.) of the Code of Virginia that is more stringent than the provisions of this section 11-350 shall not be preempted.

In the event of a violation of this section is discovered after a vote or decision by an approving body, the vote or decision of that body shall remain a valid action thereof provided that 1) the approving body had a quorum without counting the member who should have, but failed to, recuse himself under this section; and 2) there were sufficient votes under the applicable bylaws or rules of procedure for the approving body for it to take the action decided upon without counting the vote of an member who should have, but failed to, recuse himself under this section.

(Ord. No. 4639, § 1, 12-12-09; Ord. No. 5027, § 2, 6-18-16)

The purpose of this section 11-400 is to ensure that the use and development of land as authorized in the zoning ordinance is undertaken in an orderly and proper manner that furthers the public health, safety and welfare and makes adequate provision for assuring the availability of appropriate public and private services and amenities and for minimizing the adverse effects of such development.

The director has the duty and responsibility to administer and enforce the provisions of this section 11-400 and the authority to establish rules and regulations to do so. To the extent delegated herein, other department directors shall have the duties and responsibilities provided and the authority to establish rules and regulations to administer such responsibilities. The director or the head of any other department referred to in this section 11-400 may delegate in writing to an employee under his supervision any of the functions hereunder for which the director or such department head is responsible. These provisions of section 11-400 are included here for administrative convenience; they derive from section 9.33 of the charter and are technically not part of the zoning ordinance for purposes of section 9.12 of the charter.

No permit shall be issued to erect or alter any building or structure or alter the grade of any land that is subject to this section 11-400 until a site plan has been submitted and approved.

(A)

Construction of buildings. Unless exempted pursuant to section 11-404, it shall be unlawful for any person to construct or erect any building or structure on any land within the city until a site plan has been submitted and approved.

(B)

Enlargement of buildings. Unless exempted pursuant to section 11-404, it shall be unlawful for any person to alter any building or structure on any land within the city in such manner as to increase the floor area or change the land area covered by the building or structure until a site plan has been submitted and approved.

(C)

Alteration of grade, etc. Unless exempted pursuant to section 11-404, it shall be unlawful for any person to alter the grade of any land in such a manner as to change existing contours in excess of two feet within ten feet of adjacent land, or in excess of three feet elsewhere, construct any streets, alleys, sidewalks, curbs or gutters, build any retaining walls, construct any off-street parking facility, construct any drain or sewer or change or divert the flow of storm water or natural watercourses until a site plan has been submitted and approved.

(D)

Land within archeological resource areas. It shall be unlawful for any person to conduct or permit any ground disturbing activity on land subject to the provisions of section 11-411 until a site plan has been submitted and approved.

(E)

Compliance with site plans. It shall be unlawful for any person to construct, erect or alter any building or structure or develop, change or improve land for which an approved site plan is required, except in accordance with the approved final site plan.

The prohibitions of section 11-403(A), (B) and (C) shall not apply to:

(A)

The contemporaneous development of fewer than three dwelling units. It is the intent of this section 11-404(A) that these site plan regulations not apply to individual single-unit, two-unit or townhouse units developed or improved independently notwithstanding the terms of the other exemptions or the fact that such units were originally subject to a site plan. It is the further intent of this section 11-404(A) that this exemption not be undermined by purposeful piecemeal development; the term "contemporaneous development" includes development under common ownership or control or the subject of a common, concerted or coordinated plan or schedule of development irrespective of ownership or control.

(B)

Additions to buildings where the total gross floor area of the proposed addition does not exceed 3,000 square feet or where additions are proposed to two or more buildings located on the same lot, the aggregate proposed additions do not exceed 3,000 square feet. In calculating the size of any addition, replacement floor area shall be included.

(C)

New buildings where the total gross floor area does not exceed 3,000 square feet; provided no part of any building is closer than 66 feet to other land that is used or zoned residential, there is no excess alteration of the grade as set forth in section 11-403(C), the site is not in a floodplain, and the site is not in excess of 10,000 square feet. In calculating the size of any new building, replacement floor area shall be included.

(D)

Improvements for off-street parking purposes when appurtenant only to existing buildings, where access will be provided by existing driveways, and where the improvements do not provide more than five parking spaces. The total number of additional parking spaces provided under this exemption shall not exceed five, all of which shall comply with applicable provisions of Article VIII.

(E)

Grading of open areas, either by excavation or fill, for the sole purpose of bringing the land to a grade compatible with the surrounding area, provided that the director of transportation and environmental services finds, on an inspection of the site, that the grading will have no adverse affect on the land of adjoining owners, will not encroach on or impair existing drainage channels or floodplains and will not cause problems of erosion, ponding or silting on adjoining properties.

(F)

Improvements of the city including but not limited to streets, bridges, alleys, sidewalks, curbs, gutters, retaining walls or sewer improvements, but not including buildings, structures or parking lots.

(G)

Lots in the R-20, R-12, R-8, R-5, and R-2-5 zones developed with a multi-unit dwelling.

Site plans shall be classified as preliminary site plans and final site plans. Preliminary site plans and final site plans may be combined and treated as a final site plan in either of the following instances, provided all the information required by this section 11-400 for both classes of plans is included and the procedure for processing preliminary site plans is followed:

(A)

When a preliminary site plan has been approved and a change in part of the project is desired; or

(B)

When a project embraces no more than three separate buildings or structures, no dedication or reservation of public streets through or within the project is required, the project does not embrace more than two acres of land, and the project does not include land in more than one zone classification.

(A)

An application for preliminary site plan approval shall be submitted by the owner, contract purchaser, lessee or other party having a legal interest in the subject property on such forms as the director shall prescribe. It shall include a clear and concise statement identifying the applicant and, if different, the owner of the property, including the name and address of each person or entity owning an interest in the applicant or owner and the extent of such ownership interest unless any of such entities is a corporation or a partnership, in which case only those persons owning an interest in excess of three percent in such corporation or partnership need be identified by name, address and extent of interest. For purposes of this section 11-406(A), the term ownership interest shall include any legal or equitable interest held at the time of the application in the real property which is the subject of the application.

(B)

The preliminary site plan shall be prepared under the responsible charge of a professional engineer or land surveyor duly authorized by the Commonwealth of Virginia, or, if required by the director, by both. No fewer than 20 prints of the preliminary site plan at a scale of not less than 100 feet to the inch shall be submitted with the application. Print size shall not generally exceed 24 by 36 inches.

(C)

An application for preliminary site plan approval shall include the following information and material:

(1)

The name and address of the developers.

(2)

The name, address, signature and registration number of the professionals responsible for preparing the plan.

(3)

The present zoning of the site and abutting property.

(4)

General alignment and lengths of all streets and all property lines.

(5)

Date, scale and north point with reference to source of meridian.

(6)

All building restriction lines, highway setback lines, easements, covenants, reservations and rights-of-way.

(7)

The total land area.

(8)

The topography of existing ground and paved areas, and elevations of streets, alleys, utilities, sanitary and storm sewers, buildings and structures. Topography is to be shown by dashed lines illustrating two foot standard contour intervals except where in the opinion of the director of transportation and environmental services five foot intervals would be satisfactory, and by spot elevations where necessary to indicate flat areas, all based on U.S. Coast and Geodetic Survey datum, or city datum where the former are not available.

(9)

A five by seven inch space for the signed approval of the planning commission and the director and the director of transportation and environmental services.

(10)

A location map locating the site in relation to the nearest intersection of two or more streets at a scale that can be easily traced.

(11)

A complete narrative description of the proposed development.

(12)

Archaeological evaluation reports and resource management plans as may be required by section 11-411.

(13)

In the case of any land or use for which a special use permit or conditional zoning has been granted, any information reasonably necessary to demonstrate compliance with the conditions imposed as part of such approval.

(14)

Building massing studies sufficient to show the mass and orientation of any proposed buildings and their relationship to nearby buildings and, if required by the director of planning and zoning in the following cases, a model:

(a)

Site plans subject to the pre-application requirements of section 11-407(A); or

(b)

Site plans which include nonresidential land which is adjacent to land zoned or used for residential use.

(15)

In the case of any proposed building over 50 feet in height, a profile (section) drawing showing the location and height of each building in the development, as well as each building on adjacent sites.

(16)

A list of all modifications of the applicable zone regulations which are sought as part of the application pursuant to section 11-416, the rationale for each and the features of the development which compensate for the impacts otherwise protected by said regulations.

(17)

Any other information that may reasonably be required by the director or the director of transportation and environmental services to determine that the application is in compliance with all codes and ordinances of the city.

(D)

The preliminary site plan shall show the general location, dimensions, size and height of the following when existing:

(1)

Sidewalks, streets, alleys, easements and utilities, including street lighting and underground conduits for street lighting.

(2)

Buildings and structures.

(3)

Public sewer systems.

(4)

Slopes, terraces and retaining walls.

(5)

Driveways, entrances, exits, parking areas and sidewalks.

(6)

Water mains and fire hydrants.

(7)

Major trees and shrubs.

(8)

Recreation areas and swimming pools.

(9)

Natural and artificial watercourses and bodies of water and wetlands.

(10)

Limits of floodplains.

(11)

Fire hydrants, street lighting, underground conduits for street lighting and street trees on public rights-of-way immediately adjacent to site.

(12)

Significant geological features.

(13)

When known, areas that can reasonably be expected to or which do contain soils or materials contaminated with but not limited to heavy metals, petroleum products, PCB's, pesticides, flyash, or other toxic or hazardous materials.

(14)

When known, underground storage tanks.

(15)

When known, areas located within 1000 feet of a former sanitary landfill, dump or disposal area.

(16)

When known, areas with the potential of generating combustible gases (i.e. methane).

(E)

The preliminary site plan shall show the general location, dimensions, size and height of the following regarding the proposed development:

(1)

Sidewalks, streets, alleys, easements and utilities, including street lighting and underground conduits for street lighting.

(2)

Buildings and structures with entrances and exits identified.

(3)

Public sewer systems.

(4)

Slopes, terraces and retaining walls.

(5)

Driveways, entrances, exits, parking areas and sidewalks.

(6)

Water mains and fire hydrants.

(7)

Methods to control erosion on slopes of 25 percent or more.

(8)

Recreation areas and swimming pools.

(9)

Natural and artificial watercourses and bodies of water.

(10)

Distances between buildings.

(11)

Calculations of the following:

(a)

Number of dwelling units;

(b)

Number of parking spaces;

(c)

Number of loading spaces; and

(d)

Square feet of floor space.

(12)

Plans for collecting and depositing storm water and the method of treatment of natural and artificial watercourses, including a delineation of proposed limits of floodplains, if any.

(13)

A general indication of proposed grading, surface drainage, terraces, retaining wall heights, grades on paved areas and ground floor elevations of proposed buildings and structures, shown by two foot or five foot contours, as required by the director, and approximate elevations.

(14)

A landscape plan showing all natural or landscaped areas, including the general location, names and area coverage of trees, shrubs and ground cover to be planted, the areas to be retained in natural vegetation, noting total existing crown area of trees being retained, and means of compliance with each of the landscaping requirements of section 11-410(CC).

(15)

Fire hydrants, street lighting, underground conduits for street lighting and street trees on public rights-of-way immediately adjacent to site.

(16)

Any locations intended for the outdoor display or storage of goods and merchandise.

(17)

Underground plans showing location of existing and proposed poles, transformers and switches.

(18)

Types of materials to be used for proposed improvements within the public right-of-way.

(19)

Plans to remediate, remove, or control on site any contaminated soils, materials, underground storage tanks, combustible gases, or old landfills, dumps or disposal areas.

(20)

Plans for minimizing the impact on existing or developing wetlands or for the creation of new wetlands.

(F)

All documents and information submitted as part of an application for preliminary site plan approval constitute a statement by the applicant that he intends and agrees to be bound to develop in accord with such information upon approval.

(G)

The preliminary site plan shall be accompanied by the fee prescribed pursuant to section 11-104.

The following procedures shall govern the processing and review of applications for site plan approval.

(A)

Pre-application requirements.

(1)

Conceptual review conference. The purpose of the conceptual review conference and subsequent follow-up meetings is to allow the director to ensure that the City's policies regarding land use planning and zoning, and building footprint, height, density, mass and scale, are met before an applicant prepares a specific site design for a project. No matters discussed at this meeting shall be binding on either the applicant or the city. No fewer than 90 days prior to filing an application which includes a preliminary site plan, an applicant for any of the following projects shall meet with the director to discuss the applicant's intentions with regard to the proposed development:

(a)

A project within a coordinated development district;

(b)

A project which requires a master plan or zoning amendment;

(c)

A project which requires a special use permit for increased floor area ratio, density or building height;

(d)

A project which requires a transportation management special use permit;

(e)

A project which requires a parking or open space reduction;

(f)

A project in a historic district, or

(g)

A project on property which includes environmentally sensitive lands, including resource protection areas, or wooded sites or steeply sloped sites as defined by the director by general rule.

(2)

Pre-application conference. No fewer than 30 days prior to filing an application for preliminary site plan approval, an applicant shall meet with the director to discuss the applicant's intentions with regard to the proposed development and the requirements of this section 11-400, and other city requirements related to land use and site development. It is the intention of this section 11-407(A)(2) that this meeting shall be held prior to the time when the site plan and application for site plan approval are prepared. No matters discussed at this meeting shall be binding on either the applicant or the city.

(B)

Filing application.

(1)

An application for site plan approval shall be filed with the director and shall contain the information specified in section 11-406.

(2)

No application shall be accepted and reviewed unless determined to be complete by the director. A complete application is one which includes the minimum submission requirements expressly listed in section 11-406. Each application shall be reviewed to determine if it includes the minimum submission requirements and notice regarding the completeness of the application shall be mailed to the applicant.

(C)

Reserved.

(D)

Staff report and recommendation. The director shall prepare a staff report for the planning commission on each application which report shall include all staff comments and analysis, including any report and recommendation prepared by another department, and a recommendation for approval, for approval with conditions or for disapproval. If the director disagrees with the recommendations of another department, the report to the planning commission shall so indicate and the reasons for disagreeing shall be given.

(E)

Review by planning commission. The director shall see that all required staff and committee reviews are completed and that the application is docketed for the planning commission to act.

(F)

Changes to application. If an applicant submits materials to supplement its application prior to final action by the planning commission, the director shall review the additional material to determine whether additional staff time is necessary to assess the application. If additional time is necessary, the director may extend the review period accordingly, or, in the event of a major revision, may require that a new application be filed.

Editor's note— Ord. No. 4281, § 5, adopted Nov. 16, 2002, repealed section 11-408, notice of site plan coordinating committee, in its entirety.

(A)

Action on preliminary site plan.

(1)

The planning commission shall hold a public hearing and act on the application for preliminary site plan approval by approving or disapproving the plan or approving it with conditions, required revisions, additions or changes. In the case of disapproval, the commission shall give its reasons therefor. Two copies of the site plan shall be returned to the applicant with the date of approval or disapproval noted thereon over the signature of the director. Any action by the planning commission shall be entered in the minutes of the commission.

(2)

Reserved.

(B)

Standard for approval by planning commission. An applicant for preliminary site plan approval shall demonstrate to the satisfaction of the commission that:

(1)

The applicable factors of section 11-410 have been appropriately considered in the site plan;

(2)

The development will not adversely affect the public health safety and welfare; and

(3)

The application complies with all provisions of this ordinance and all applicable laws.

(C)

Appeal of action on preliminary site plan.

(1)

The planning commission's approval or disapproval of a preliminary site plan or combined site plan may be appealed to the city council by the applicant, by the city manager, by an owner of property located within 1,000 feet of the boundaries of the site plan property, or by a group who submits a petition signed by at least 25 property owners or residents of the city. The appeal shall be made in writing, shall state clearly the grounds of the appeal and shall be filed with the city clerk within 15 days after the decision is announced. Following the filing of such an appeal, the director shall verify that each person filing the appeal has the right of appeal as set forth in this subsection. The filing of an appeal shall stay the effect of site plan approval by the planning commission.

(2)

Whenever an appeal is filed, the commission shall forward the record and its reasons for approval or disapproval to the city council, which may be in the form of the transcription of the public hearing, and shall designate at least one member of the commission to appear before the city council at the public hearing.

(3)

In the event an appeal is filed, the city council shall schedule at least one public hearing on the matter. The council shall review the record, documents and actions taken by the planning commission and may take additional evidence if necessary for complete and competent review of the issues before it. The council may affirm, reverse or modify the decision of the commission or vacate and remand the matter to the commission for further consideration.

(4)

The issues on appeal shall be limited to the grounds identified in the appeal papers filed with the city clerk. The proposed use shall not be grounds for appeal.

(5)

The council's action on appeal may be reviewed by appeal to the circuit court to determine whether substantial evidence exists to support the decision of council provided the appeal to court is filed within 60 days of the council action.

(D)

Action on final site plan.

(1)

If a preliminary site plan is approved, or approved with modifications, and no appeal as provided in section 11-409(C) is taken, the applicant shall cause a final site plan to be prepared by a professional engineer or land surveyor duly authorized by the Commonwealth of Virginia, or, if required by the director, by both, and to be submitted to the director for consideration. Final site plans shall be on reproducible permanent base material and shall be on sheets which shall not exceed 24 × 36 inches in size. The plan may show only part of the land designated on the preliminary site plan if desired. The original tracing and 20 prints of the final site plan shall be at a scale no smaller than one inch to 40 feet unless, in the opinion of the director, a one inch to 50-foot scale would be satisfactory where detail is not necessary.

(2)

The final site plan shall show all of the information required by sections 11-406(C) through (E) for preliminary site plans, but the information shown shall be specific, precise and accurate to usual and recognized professional standards and not general in nature. Calculations of storm water runoff shall be submitted. The final site plan submission shall include test borings and soil tests, when the subject property contains marine clay or fill or when otherwise found necessary by the director, including proposals for sheeting, shoring, dewatering, excavating, foundation design and backfilling. Final site plans shall be checked for compliance with preliminary site plans previously approved and the requirements of this section 11-409(D). If the director finds that a final site plan complies in all respects, they shall indicate their approval thereon and submit it to the chairman or vice-chairman of the commission for approval. The date of the final approval signature shall be noted on the plan.

(3)

If the director finds that a final plan does not comply with a previously approved preliminary site plan or the provisions of this section 11-409(D), the applicant shall be so advised, and shall be allowed to either bring the final plan into compliance in all respects, submit a new preliminary site plan for processing as if no plan had been previously considered, or withdraw his application without refund of fees.

(4)

The director shall release the approved final site plan to any applicant who has complied with all applicable requirements.

In reviewing an application, the planning commission shall consider those factors listed below which it determines to be applicable in a given case.

(A)

The application shall comply with the provisions of this ordinance and all other ordinances of the city and of any other applicable laws.

(B)

The site plan shall be in reasonable conformity with the master plan of the city.

(C)

Adequate provision shall be made to ensure that the massing, location and orientation of buildings and uses, and the engineering design and location of roadways, parking, pedestrian amenities, open space and other site features are adequately related to each other and are compatible with and do not adversely affect the surrounding property and the character of the neighborhood.

(D)

Reasonable provision shall be made to ensure that development will be served by essential public facilities and services such as highways, streets, parking spaces, police and fire protection, drainage structures, refuse disposal, water and sewers, schools, and public transportation.

(E)

Each building or structure shall be reasonably accessible to fire, police, emergency and service vehicles. When deemed necessary for access by the fire chief or the director of transportation and environmental services, emergency vehicle easements shall be provided. The access for fire, police and emergency vehicles shall be unobstructed at all times.

(F)

Adequate provision shall be made to ensure the compatibility of the proposed development, including mass, scale, site layout and site design with the character of the surrounding property and the neighborhood.

(G)

Adequate provision shall be made for at least the required amount of open space in a configuration that makes that open space usable, functional, and appropriate to the development proposed.

(H)

The width, grade, location, alignment and arrangement of streets, sidewalks and alleys shall conform to the master plan of the city as near as reasonably practicable.

(I)

Off-street parking facilities shall have a reasonable slope and be accessible, safe and properly drained.

(J)

Streets, sidewalks and alleys shall, insofar as reasonably practicable, provide access and good traffic circulation to and from adjacent lands, existing streets, alleys and sidewalks.

(K)

Provision shall be made to ensure that adequate access roads or alleys or entrance or exit drives will be provided and will be designed and improved so as to prevent traffic hazards or problems and to minimize traffic congestion in public streets and alleys.

(L)

Adequate provision shall be made to ensure that the vehicular circulation elements of the proposed development will not create hazards to the safety of vehicular or pedestrian traffic on or off the site, disjointed vehicular or pedestrian circulation paths on or off the site, or undue interference and inconvenience to vehicular and pedestrian travel.

(M)

Adequate water mains and fire hydrants shall be provided in accessible places in accordance with good fire fighting and fire prevention practice acceptable to the chief of the fire department.

(N)

Adequate provision shall be made for the collection and disposition of all on- and off-site storm water and natural water, including but not limited to on-site drainage retention facilities. Natural drainage ways shall be used when it is reasonably practicable to do so and improvements shall be made to the ways in accordance with good engineering practice when in the opinion of the director of transportation and environmental services good engineering practice indicates improvements.

(O)

Adequate provision shall be made for the collection and disposition of all on- and off-site sanitary sewage, which disposition is to be by connection to existing separated sanitary sewer lines.

(P)

Adequate provision shall be made to avoid an increase in hazard to adjacent property from flood, increased runoff or water damage, including hazards to sidewalks from roofwater.

(Q)

The obstruction of natural watercourses shall be avoided.

(R)

No building for any residential use shall be allowed within a 100 year floodplain, unless there is first a change in elevation placing the lowest habitable floor of any building above the floodplain and unless the waterway involved has been improved in accordance with good engineering practice acceptable to the director of transportation and environmental services. This requirement shall not be construed to allow buildings in flood plains where the city council by ordinance or resolution has declared otherwise.

(S)

Adequate provision shall be made to control the slippage, shifting, erosion, accretion and subsidence of soil.

(T)

Adequate provision shall be made to control the slipping and shifting of buildings and structures.

(U)

Adequate provision shall be made to protect other lands, structures, persons and property.

(V)

Adequate provision shall be made to clean, control and otherwise alleviate contamination or environmental hazards on land when the site is in an area found by the director of transportation and environmental services to be contaminated by a toxic substance or otherwise to contain environmental hazards which are detrimental to the public health, safety and welfare.

(W)

Adequate provision shall be made to ensure that development as shown by the site plan, will not destroy, damage, detrimentally modify or interfere with the enjoyment and function of any significant natural, topographic, scenic or physical features of the site.

(X)

Adequate provision shall be made for lighting as shall be determined by standards established by the city council of all parking areas, roadways and walkways between public streets and parking lots and any buildings open after dark.

(Y)

Adequate provision shall be made to avoid glare of vehicular and stationary lights that would affect the established character of the neighborhood, and to the extent such lights will be visible from any residential zone, measures to shield or direct such lights so as to eliminate or mitigate such glare shall be taken.

(Z)

Adequate provision shall be made to ensure that the location, lighting and type of signs and the relationship of signs to traffic-control is appropriate for the site and will not have an adverse affect on any adjacent properties.

(AA)

Adequate provision shall be made in the designs for buildings or structures to afford appropriate protection against the accumulation of hazardous quantities of combustible gases.

(BB)

Adequate provision shall be made to minimize the impact on existing or developing wetlands.

(CC)

Adequate minimum landscaping shall be provided as follows:

(1)

All landscaping, including without limitation the utilization of reference standards and landscape plan submission requirements, protection and preservation of existing vegetation, specification of plant material in general and for street trees and parking areas, calculation of crown coverage, design and specification of bioretention plantings, and maintenance of plantings, shall be provided and performed as specified in guidelines prepared and maintained by the director of recreation, parks and cultural activities. The guidelines shall be known as the City's Landscape Guidelines, shall be made available to the public and shall be used by applicants in the preparation, submission for approval, execution and maintenance of landscape improvements, including as required by this section 11-410(CC).

(2)

Area coverage of trees to be planted, together with the existing crown area of those retained, shall occupy at least 25 percent of the total land area of the proposed project. With the approval of the planning commission, up to 50 percent of the required landscaping may consist of new trees planted on adjacent public right-of-way or other public land or of on-site, roof-top, deck or plaza plantings; provided that, in the case of uses in certain zones which are permitted to cover 100 percent of the total land area of the proposed project, up to 100 percent of the required landscaping may consist of new trees planted on adjacent public right-of-way or other public land or of on-site, roof-top, deck or plaza plantings, with the approval of the planning commission. Total land area for purposes of this paragraph shall be the area shown on the site plan as the area of the site plan under consideration. All proposed plantings, including, but not limited to, shade trees, ornamental trees, evergreen trees, shrubs, groundcovers and turf grasses to be planted, shall be provided in accordance with the Landscape Guidelines.

(3)

The planning commission or city council on appeal may require screening on-site plans where a commercial or industrial use abuts a residential use or is directly across the street or other public right-of-way from a residential use. The screening may be composed of either plant or man-made materials. Where plant material is required, it may be included as part of the 25 percent area coverage of trees and shrubs required in section 11-410(CC)(1) above.

(4)

Approved measures and methods shall be provided to preserve and protect existing vegetation from damage during construction and to protect vegetation in the public right-of-way. Methods for preservation and protection shall be approved by the director of recreation, parks and cultural activities in accordance with the Landscape Guidelines.

(5)

Any parcel proposed to be used for the outdoor display or storage of motor vehicles shall be required at a minimum to contain a landscaped buffer at a depth of six feet and a minimum height of three feet located along those streets upon which such parcel has frontage.

(6)

(a)

Where nonstructured surface parking areas are provided, they shall be designed with planting areas in the surface area at intervals to be determined by the director. The planting areas shall be in the form of curbed space of sufficient size to permit the planting of trees and shrubs which may overhang the curbed space without damage from cars.

(b)

Where a required surface parking lot abuts a public road or sidewalk, there shall be provided a landscaping strip at least six feet in width between the abutting right-of-way and the parking lot.

(c)

Area coverage of trees or shrubs planted in the breaks and strips may be calculated as part of the landscaping required by section 4-110(CC)(1) above.

(7)

The location and type of all ground cover proposed to be planted on all disturbed areas of the site shall be indicated but this paragraph shall not operate as a limitation upon any landscaping that city council may require as a condition attached to a special use permit.

(8)

In addition to the provisions of this section 11-410(CC), further requirements relating to street trees within the site and on public rights-of-way adjacent to the site are set forth in section 11-412(D)(6).

(9)

Where trees are to be planted within the public right-of-way, they shall be planted in appropriate tree wells and provided protection as determined to be necessary and appropriate by the director of recreation, parks and cultural activities.

(A)

Archaeological resource areas. A preliminary site plan which includes land designated as a potential resource area on the City of Alexandria Archaeological Resource Map, shall include reasonable archaeological evaluation reports and resource management plans when required under this section 11-411. The archeological resource map, which is on file in the office of the director of historic Alexandria and the office of the city archaeologist is hereby made a part of this ordinance.

(B)

Application. This section 11-411 shall apply to all applications for preliminary or combined site plan or other development approval, otherwise subject to its provisions, which are filed subsequent to September 16, 1989.

(C)

Administration. This section 11-411 shall be administered by the director of the office of historic Alexandria who may adopt reasonable procedures for its administration, consistent with applicable law.

(D)

Preliminary archeological assessment. Prior to filing an application for approval of a preliminary site plan to which this section 11-411 applies, the applicant shall confer with the director of the office of historic Alexandria in order for the director to conduct a preliminary assessment of the potential archaeological significance of any site plan area designated on the map, and of the impact of any proposed ground disturbing activities on such area. The applicant shall provide full and accurate information as to all ground disturbing activities proposed to be conducted on the site.

(E)

Criteria for preliminary assessment. Such preliminary archaeological assessment shall be based upon the following criteria, and shall be conducted consistent with professionally recognized standards for archaeological site evaluation:

(1)

Research value. The extent to which the archaeological data that might be contained on the property would contribute to the expansion of knowledge.

(2)

Rarity. The degree of uniqueness the property's resources possess and their potential for providing archaeological information about a person, structure, event or historical process, for which there are very few examples in Alexandria.

(3)

Public value. The level of importance the property has to the community as a location associated with a significant person, structure, event or historical process.

(4)

Site integrity. The extent to which soil stratigraphy and original placement and condition of archaeological resources on the property have not been disturbed or altered in a manner which appreciably reduces their research or public value.

(5)

Presence of materials. The extent to which archaeological resources or evidence of historic structures are present on the property.

(6)

Impact on resources. The extent to which any proposed ground disturbing activities will alter or destroy resources which the director has determined to have substantial archaeological significance under sections 11-411(E)(1) through (5) above.

(F)

Finding of archeological significance.

(1)

If, at the conclusion of the preliminary archaeological assessment, the director of the office of historic Alexandria determines either that the site plan area has no substantial archaeological significance, or that the proposed construction or development will not have a substantial adverse impact on any known or potential archaeological resources, the director of the office of historic Alexandria shall so certify to the planning commission, and no further review under this section 11-411 shall be required.

(2)

If, at the conclusion of the preliminary archaeological assessment, the director of the office of the historic Alexandria determines that the site plan area has potential archaeological significance, and that the proposed development will have a substantial adverse impact on any known or potential archaeological resources, the applicant shall submit an archaeological evaluation report and a resource management plan as part of the preliminary site plan application.

(3)

The director of the office of historic Alexandria shall render a determination in writing, within seven working days after receiving the information, unless written consent to extend such period is given by the applicant.

(G)

Archeological evaluation report and resource management plan.

(1)

When required under the provisions of this section 11-411, the applicant shall submit as part of the preliminary site plan application an archaeological evaluation report and a resource management plan, prepared by a qualified archaeologist or historian in conformity with professionally recognized standards for cultural resource management. The applicant or the authorized agent thereof shall confer with the director of the office of historic Alexandria prior to preparing any submission to define and agree upon guidelines for such report and plan.

(2)

Such archaeological evaluation report shall include detailed evaluation of the archaeological significance of the site plan area, including but not limited to reasonable measures for historic research, archaeological surveys and test excavations.

(3)

Such resource management plan shall include reasonable measures for the study and preservation of archaeological resources found within the site plan area, including but not limited to test and full-scale excavations, site construction monitoring, field recording, photography, laboratory analysis, conservation of organic and metal artifacts, curation of the collection (e.g., artifacts, notes, photographs) and preparation of reports.

(4)

Such resource management plan may, and if required by the planning commission or city council shall, also provide reasonable measures for further archaeological study, restoration, reconstruction, disposition of recovered artifacts to an appropriate public or private collection or museum, and in situ preservation of archaeological resources found within the site plan area.

(H)

Review of archeological evaluation report and resource management plan.

(1)

The archaeological evaluation report and resource management plan shall be reviewed and approved, disapproved or approved with modifications or conditions or both as part of the site plan review process.

(2)

In the event a site plan application and review is required exclusively on account of ground disturbing activities not otherwise subject to such application and review, then and in such an event, notwithstanding any other provisions of this ordinance, the required site plan application and review shall be limited to the purposes and requirements of this section 11-411, and the application fee shall be as prescribed pursuant to section 11-104.

(A)

Private improvements required. As part of site plan approval, a development may be required to include improvements such as pedestrian walkways, vehicular travel lanes or driveways, parking areas, fences, walls, curbs and gutters, signs, lighting, screening, landscaping or such other improvements, facilities and services as the planning commission finds are reasonable and appropriate to service the site or for the accommodation of persons visiting, living or working thereon.

(B)

Maintenance of private improvements. The owner of any building, structure or land for which a site plan is approved shall maintain those improvements in such condition as to assure public safety and the general welfare. It is the purpose of this section 11-412(B) to assure that those improvements, facilities and services which are intended for public or quasi-public use or for the protection of neighboring properties, and which are not dedicated or otherwise transferred to and accepted by the city, are maintained in a condition as will permit their intended purposes to continue to be fully served.

(1)

Whenever any of those site improvements, facilities or services set out in the site plan fall into disrepair, the director of transportation and environmental services shall give the owner or his agent written notice thereof; the notice shall require remedial action within 30 days from the receipt of the notice and shall state that if no such action is taken, the city will take action itself, bill the owner for the costs and collect the costs like taxes in the event of nonpayment by the owner. Mailing to the last known post office address shall constitute sufficient notice to owners who cannot be found after a reasonably diligent search or who are nonresidents of the city.

(2)

Whenever the owner refuses, neglects or fails to take the required remedial action after being notified in the manner prescribed in section 11-412(B)(1) above, the director of transportation and environmental services may cause the remedial action to be taken. The expense thereof shall be computed, and a bill for the expense shall be prepared by the department of finance and mailed to the owner at the owner's last known post office address within a reasonable time after the repair.

(3)

In the event the city does not receive payment of the bill within 30 days after mailing, a duplicate statement of the bill shall be forwarded by the director of finance, who shall see that the expense is charged to the owner and collected in the same manner as city taxes. Every charge for which the owner of any property shall have been assessed and which remains unpaid shall be recorded with the clerk of the circuit court and thereafter constitute a lien against the property.

(4)

Failure by the owner or his agent to take remedial action under this section 11-412(B) constitutes grounds for revocation of all city approvals regarding the land involved.

(C)

Bonding of private improvements. The planning commission may specify improvements for which a guarantee by the applicant is necessary in order to cover the cost of construction and installation in those cases where the public health, safety and welfare would be jeopardized without the improvements or the city otherwise placed at risk of completing them. Where a guarantee is required, the provisions of section 11-414(B) shall apply.

(D)

Public improvements required. The planning commission may require that such public improvements and dedications be made as are necessary for the public health, safety and welfare to include, without limitation, the following:

(1)

The planning commission shall require the dedication of an area of land 60 feet wide within the site from property located in the R-20 through the R-2-5 zones inclusive, and 66 feet wide within the site from property located in all other zones, for the installation of public streets, sidewalks, curbs and gutters when the commission finds that any such improvement is necessary to properly service the site.

(2)

The planning commission shall require the dedication of new streets within the site or the extension of existing streets within the site to the width called for by section 7-5-28 of the city code when the dedication would constitute a part of the major thoroughfare plan of the city and the commission finds that any such improvement is necessary to properly service the site.

(3)

The planning commission shall require from the site the dedication of one-half of the land necessary for the installation of public streets, sidewalks, curbs and gutters to the 60 or 66 foot width required above when an existing street abutting a site is of less width than that so required and the commission finds that such improvement is necessary to properly service the site.

(4)

The planning commission shall require from the site the dedication of one-half of the land necessary for the installation of public streets, sidewalks, curbs and gutters to the width called for by section 7-5-28 of the city code when an existing street abutting a site is of less width than that required by such section, when any dedication would constitute a part of the major thoroughfare plan of the city and when the commission finds that any such improvement is necessary to properly service the site.

(5)

The planning commission may require such other transportation improvements as may be provided for in Virginia Code § 15.1-498.1.

(6)

The planning commission, in the case of any site having 50 feet or more of frontage along a public street within or adjacent to such site, shall require the provision of fire hydrants, underground utilities and street trees in appropriate planters with adequate protection as determined by the department of parks, recreation and cultural activities, all to be placed along dedicated public rights-of-way within the site and immediately adjacent to the site when the commission finds that any such improvement is necessary to properly service the site.

(A)

The planning commission shall require payment in full or guarantee of payment in full of all costs or a proportionate share of costs for the construction and installation of landscaping, public streets, alley, sidewalks, curbs, gutters, sewers, drains and other public improvements, facilities or services within an approved site plan, subject however to the following minimum schedule:

(1)

Local streets or alleys within site: All costs.

(2)

Collector or arterial street within site: All cost of sidewalk, curb, gutter, driveway and grading and 36 foot wide pavement in single, two-unit, and multi-unit (up to four units) zones or 44-foot-wide pavement in multi-unit, mixed-use, commercial and industrial zones. Pavement in excess of these requirements will be installed at city cost.

(3)

(a)
Streets abutting site: All cost of curb, gutter, sidewalks, driveways and grading on abutting side. Paving of the traveled way will be installed at city cost.

(b)

Exception: All costs when an additional lane or service road is required to service the site.

(c)

Width of streets shall be governed by the requirements of section 7-5-28 of the city code.

(4)

Storm and sanitary sewers: All costs, including sewers required to serve upper areas of drainage shed and including the cost of connecting to an existing separated sanitary sewer line, unless a hardship as described in section 5-6-25 of the city code is found in which case the planning commission may waive this requirement and approve the site plan with conditions otherwise appropriate, including the payment of a pro rata share of the cost of connection.

(5)

Natural streams and channels: Where a natural stream or channel abuts or crosses the site and a portion of the site to be used is within the floodplain of the stream or channel, the owner or developer shall be required at his expense to improve the stream or channel to the extent necessary to provide sufficient waterway to carry the projected 100-year flood for the stream or channel.

(6)

(a)
Natural or landscaped open space: All costs of landscaping, including new trees and shrubs, surface or ground treatment, and protection and preservation of existing ground cover, trees and plants as shown on the landscape plan as part of the approved preliminary site plan. When both site plans and erosion and sedimentation control plans are required to be submitted for a development tract of land, at least the minimum cost of replacement trees, as specified in the city erosion and sedimentation control handbook tree replacement guidelines for any trees designated to be retained in compliance with the preliminary site plan crown area coverage requirements of section 11-410(CC).

(b)

A 100 percent bond or escrow for all landscaping shall be required and retained by the city until such time as a minimum of 90 percent of the planting, including any replanting, shall have survived for a period of three years. Replacement landscaping shall be installed during every intervening fall and spring planting season until the three year/90 percent survival requirement is met. Nothing in this section 11-413(A)(6)(b) shall relieve an applicant, owner or successor in interest of its requirement to provide and maintain required landscaping in perpetuity.

(7)

Fire hydrants, underground conduits for street lighting and street trees, both on site and on public rights-of-way adjacent to site: All costs.

(B)

A corporate surety bond, letter of credit, certificate of deposit or similar financial guarantee for at least the sum estimated to be the full cost of the improvements, of a company authorized to do business in the state, or a cash escrow for the estimated full amount of improvements, shall be deemed to be a satisfactory guarantee.

(A)

It shall be unlawful for any person to occupy, or cause to allow to be occupied, any building, structure or portion thereof or use, or cause or allow to be used any land for which a site plan is required by this ordinance until an as built site plan has been approved by the director.

(B)

Upon satisfactory completion of the installation of the improvements shown on the approved site plan or a section thereof, the owner, developer or his authorized agent shall submit to the director an as built site plan certified by a person duly licensed by the Commonwealth of Virginia for review and approval for conformity with the approved site plan by the appropriate city departments. The director shall approve an as built site plan within ten days of the receipt of the plan or advise the applicant of deficiencies. No as built site plan shall be approved until the building, structure and site involved shall comply in all respects with the approved site plan or section thereof. Two inspections for compliance may be made of an entire site plan or a section thereof without cost to the applicant. No performance bond, certified check or other guarantee shall be released until the as built site plan has been approved by the director. Every approved as built site plan shall be dated, state that the building, structure and the land involved complies with all provisions of this ordinance and be signed by the director. A record of all as built site plans issued shall be maintained in the office of the director.

Any change to the terms of an approved final site plan requires that an amended site plan application be filed and that the amended site plan be reviewed and approved, pursuant to the provisions of this section 11-400. Minor modifications may be approved by the city manager, upon the recommendation of the director of planning and zoning.

(A)

Modification of zoning regulations.

(1)

In approving a site plan under the provisions of this section 11-400, the planning commission may modify the minimum frontage, yard, open and usable space or other minimum requirements imposed by this ordinance for the zone or zones applicable to the land depicted in the site plan, or the requirements of section 11-410(CC), if the planning commission determines that such modification is necessary or desirable to good site development, that specific and identified features of the site design make up for those impacts otherwise protected by the regulations for which modification is sought and that such modification will not be detrimental to neighboring property or to the public health, safety and welfare. For modifications of the requirements of section 11- 410(CC) the planning commission must also determine that the modification will not violate the intention of section 11-410(CC) to require a reasonable amount of landscaping.

(2)

Nothing in this section 11-416 shall be deemed to authorize the planning commission to approve a site plan under the provisions of this section 11-400 when the building or structure would exceed the maximum floor area ratio, maximum density or maximum height regulations of the zone or zones in which such development is located, or the maximum floor area ratio, density or height regulations otherwise provided in this ordinance. Rather, it is the intent of this section 11-416 to allow regulations expressed as minimums such as yard dimensions to be relaxed in the proper case but not to allow regulations expressed as maximums such as density to be increased. Where the distinction between minimum and maximum is unclear, such as in the case of density expressed in terms of both minimum lot area and maximum floor area ratio or units per acre, then no modification shall be allowed.

(B)

Exclusive remedy. Relief from the zoning ordinance available from the planning commission under this section 11-416 may not be the subject of an application for a variance from the board of zoning appeals with regard to development or construction that is, or is required to be, the subject of an approved site plan or that is a condition of a site plan approval.

(C)

Applicability to SUP applications. In addition to the above provisions, a modification under this section 11-416 may be approved in the case of a special use permit application under section 11-500, whether or not a site plan is required or included in the application. In such case, all restrictions and requirements for site plan modifications in sections 11-406(C)(16) and 11-416(A)(1) and (2) apply, but final action will be by the city council and not the planning commission.

(A)

The approval of a site plan under this section 11-400 shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for any permits or approvals which may be required by the codes and ordinances of the city, including, without limitation, a building permit or a certificate of occupancy.

(B)

Once a site plan has been approved, such approval acts to supersede all prior site plan approvals for the same land area.

(A)

A site plan or development special use permit approved pursuant to the provisions of this section 11-400 shall expire and become null and void as to any uncommenced construction and any uncompleted construction, unless substantial construction of the project approved in such plan is commenced within 36 months after initial planning commission approval of the plan, or council approval in case of appeal, and such construction is thereafter pursued with due diligence; provided, that upon petition by the plan applicant, property owner or any successor in interest, filed with the director of planning and zoning prior to the expiration of the period herein limited, including expiration occasioned by any interruption in substantial construction activity on a building of more than 12 consecutive months and, in case of a multi-building project, any interruption in substantial construction activity of more than 24 consecutive months between the substantial completion of one building and the commencement of substantial construction of another building, and after notice and public hearing, the planning commission may, for good cause shown, enlarge the period in which construction must be commenced or amend the requirement for due diligence in the pursuit of construction. As used in this ordinance, due diligence means action characterized by the steady, earnest, attentive, energetic and successful or productive marshalling and application of all necessary resources and efforts in order to construct and complete an approved project.

(B)

Notwithstanding any contrary provision of this ordinance, the period of validity of any other permit or plan associated with such site plan or development special use permit and approved pursuant to this ordinance shall be extended to run and expire concurrently with the site plan or development special use permit.

(C)

The amendment extending site plan or development special use permit validity to 36 months in subsection (A) and the provisions of subsection (B), above, shall apply to all site plans and development special use permits approved on and after April 1, 2009.

(D)

In addition and notwithstanding the provisions of subsections (A), (B) and (C) above, any site plan or development special use permit that has received approval prior to April 1, 2009, and remains in valid force and effect on such date shall expire and become null and void as to uncommenced or uncompleted construction unless substantial construction is commenced on or before March 31, 2012, and thereafter pursued with due diligence. Any other permit or plan approved pursuant to this ordinance and associated with a site plan or development special use permit extended by this subsection shall likewise be extended to run and expire concurrently with such site plan or development special use permit.

(E)

During the period of validity established by this section, the property subject to the site plan or development special use permit, including all buildings existing or under construction, on which substantial construction work is not actually proceeding, shall be maintained in good order and repair, in compliance with all applicable provisions of this ordinance and the city code, and in addition shall be maintained so as to prevent blight or other substantial detrimental impacts on surrounding property.

(F)

Evidence that substantial construction activity is proceeding on a building without any interruption of 12 or more consecutive months and, in the case of a multi-building project, is proceeding without interruption of 24 or more consecutive months between the substantial completion of one building and the commencement of substantial construction of another building shall constitute prima facie evidence of due diligence. Such evidence of due diligence may be rebutted by evidence that the work is not in fact steady, earnest, attentive, energetic and successful or productive. Evidence that substantial construction activity on a building has been interrupted for more than 12 consecutive months or, in the case of a multi-building project, has been interrupted for more than 24 consecutive months between the substantial completion of one building and the commencement of substantial construction of another building shall constitute prima facie evidence of a failure to maintain due diligence. Evidence of such failure may be rebutted by evidence that the interruption in substantial construction activity is proximately caused by a change in circumstances or mistake. Such change in circumstances shall be limited to a change which substantially affects the ability of the applicant, owner or any successor in interest to maintain due diligence and which could not reasonably have been anticipated at the time of site plan approval, and shall without limitation encompass change in the economic factors which affect the development of land (e.g., availability of financing, interest rates, market absorption). Such mistake shall be limited to an error or omission in the material facts or assumptions regarding the land or its physical conditions relied upon by the applicant at the time of site plan approval, which mistake substantially affects the ability of the applicant, owner or any successor in interest to maintain due diligence. Mistake shall not encompass errors in judgment, and the applicant and any successor in interest are charged with all knowledge reasonably attainable at the time of site plan approval.

(G)

When the director of planning and zoning makes a finding that a site plan has become null and void by operation of the provisions of sections 11-418 (A) through (E), he shall notify the applicant by mail at his last known address, and likewise notify any known successor in interest and the owner of the property as determined from the real estate assessment records of the city. The applicant, owner or any successor in interest who is aggrieved by, and desires to contest, such finding shall file a petition with the director of planning and zoning specifying the grounds of such contest within 30 days after the mailing of such notice. Thereafter, the planning commission shall proceed to decide, after notice and public hearing, whether the site plan has become null and void under the provisions of sections 11-418(A) through (E). In any such proceeding, the petitioner shall have the burden of proving the continuing validity of the site plan approval. In the event no such petition is timely filed, the director of planning and zoning's finding shall become final and shall not be subject to further review.

(H)

Any person aggrieved by a decision of the planning commission made under section 11-418 (A) or section 11-418 (G) may appeal the decision to the city council, provided that the appeal is filed in writing, stating the reasons therefor, with the city clerk, within 15 days after the planning commission decision is announced. The appeal shall be accompanied by the fee established pursuant to section 11-104. In the event an appeal is filed, the city council shall schedule at least one public hearing on the matter. The council may affirm, reverse or modify the decision of the commission, or return the matter to the commission for further consideration.

(I)

Fees and contributions paid by the applicant to the city in connection with a project, except application and on site inspection fees, shall be proportionately refunded if a site plan or development special use permit expires under the provisions of this section.

(A)

Notwithstanding any contrary provision of law, it shall be unlawful for any person after June 24, 1992 to commence or recommence the construction, enlargement or alteration of any building or structure, or to continue to construct, enlarge or alter any building or structure, or to develop, change or improve land, for which an approved site plan is required under the provisions of this section 11-400 pursuant to any site plan approved on or before February 23, 1985, unless either (1) a new site plan for such construction, enlargement or alteration, or development, change or improvement, which site plan complies with all provisions of law in effect at the time of approval, shall have been approved by the planning commission or city council on appeal, or (2) the person is able to proceed with such construction, enlargement or alteration, or development, change or improvement by virtue of a vested right established pursuant to section 1-600 to do so. No variance, special use permit, plot plan, certificate of appropriateness, erosion control permit, demolition permit, building or construction permit, certificate of use and occupancy, or other land use, land development or building permit shall be issued, reissued or renewed for such construction, enlargement or alteration or development, change or improvement, unless and until compliance with the provisions of this section shall have been had.

(B)

This section 11-400 shall apply to all site plans heretofore approved, to all site plan applications pending before the planning commission, city council, or a court of competent jurisdiction on June 24, 1992, and to all site plan applications filed after said date; provided, that any site plan approved after February 23, 1985, and before June 24, 1992, as to which substantial construction on a building has commenced, but has been suspended, interrupted or abandoned for at least one full month immediately prior to June 24, 1992, and remains suspended, interrupted or abandoned on June 24, 1992, shall continue in full force and effect in the event substantial construction is recommenced on or before June 24, 1993, and is thereafter pursued with due diligence; provided further, that any site plan for a multi-building project approved after February 23, 1985, and before June 24, 1992, as to which one or more buildings have been substantially completed on June 24, 1992, shall continue in full force and effect in the event substantial construction on another building is commenced on or before June 24, 1993; and provided further, that no provision of this section 11-400 shall be deemed to revive or continue in force and effect any site plan which had, prior to June 24, 1992, expired by operation of law, or to allow the period of validity of any such expired site plan to be extended by the planning commission or city council.

(C)

Notwithstanding any contrary provision of law, any site plan approved by the planning commission on October 2, 1984, shall be subject to the provisions of subsection (B) of this section.

The provisions contained in this section 11-400 shall be considered separate from, supplemental to and additional to the provisions contained elsewhere in the city code or other city ordinances. Nothing contained in this section 11-400 shall excuse any person from compliance with all other applicable provisions of the city code. Nor shall compliance with any other provision of the city code excuse any person from compliance with the provisions of this section 11-400.

(Ord. No. 3616, § 1, 2-20-93; Ord. No. 3774, § 2, 1-21-95; Ord. No. 3982, § 1, 3-14-98; Ord. No. 4019, § 1, 9-12-98; Ord. No. 4281, §§ 2—6, 11-16-02; Ord. No. 4588, § 3, 4-28-09; Ord. No. 4866, § 1, 4-12-14; Ord. No. 5027, § 2, 6-18-16; Ord. No. 5515, § 10, 12-16-23; Ord. No. 5580, § 7, 4-26-25)

The city council may approve an application for a special use permit provided for in this ordinance if the proposed location is appropriate for the use and if the proposed use or structure will be designed and operated so as to avoid, minimize or mitigate any potentially adverse effects on the neighborhood as a whole or other properties in the vicinity.

This section 11-500 provides those procedures and considerations which apply on review of an application for any special use permit and may be supplemented by other provisions of this ordinance depending upon the nature and scope of the use for which permission is sought.

(A)

Application. An application for a special use permit shall be submitted to the director on such forms as the director may prescribe and shall include the following:

(1)

A statement identifying the applicant, who shall be the owner, contract purchaser, lessee or other party having a legal interest in the subject property. It shall include a clear and concise statement identifying the applicant and, if different, the owner of the property, including the name and address of each person or entity owning an interest in the applicant or owner and the extent of such ownership interest unless any of such entities is a corporation or a partnership, in which case only those persons owning an interest in excess of three percent in such corporation or partnership need be identified by name, address and extent of interest. For purposes of this section 11-503(A)(1), the term ownership interest shall include any legal or equitable interest held at the time of the application in the real property which is the subject of the application.

(2)

A map showing the location of the property in question as well as all property within 300 feet of the boundaries of the property for which the special use permit is sought, including as to all property identified, the following information:

(a)

Existing uses;

(b)

Existing zoning;

(c)

Land use designation contained in the master plan.

(3)

A detailed description of the operation of the proposed use.

(4)

Plans to control any potential impacts of the proposed use on the nearby community, including:

(a)

Noise.

(1)

Noise levels anticipated from all mechanical equipment.

(2)

A statement as to whether the anticipated noise complies with the levels permitted by chapter 5 of title 11 of the city code.

(3)

Plans to control these anticipated noise levels.

(4)

Plans to control noise levels emanating from patrons.

(b)

Odors. Methods to be used to control odors emanating from the use.

(c)

Trash and litter.

(1)

The type and volume of trash and garbage the proposed use will generate.

(2)

The planned frequency of trash collection.

(3)

Planned methods to prevent littering on the property, streets and nearby properties.

(d)

Loading/unloading.

(1)

Availability and adequacy of off-street loading facilities.

(2)

Hours and frequency of off-street loading.

(e)

Parking.

(1)

Location of parking either on the site or within 300 feet of the site.

(2)

Number of spaces available to serve residents, employees and patrons during the hours of operation.

(f)

Streets. The design capacity of all streets providing access to the property.

(g)

Use capacity.

(1)

The estimated number of patrons, clients, pupils and other such users.

(2)

The proposed number of employees, staff and other personnel.

(h)

Hours. The proposed hours and days of operation of the use.

(i)

Signs. Existing and proposed signage to be erected or utilized on the property.

(j)

Hazardous materials. Name, monthly quantity and specific disposal method of any state or federally defined hazardous materials or waste to be handled, stored, or generated on the property.

(k)

Organic compounds. Name, monthly quantity and specific disposal method of any paint, ink or lacquer thinner, cleaning or degreasing solvent to be handled, stored, processed or generated on the property.

(l)

Security. Methods proposed to ensure the safety of residents, employees and patrons.

(5)

Where new construction is proposed, a site plan consistent with the requirements for same in section 11-400 shall be submitted and reviewed and approved as part of the special use permit application and pursuant to the procedures and standards of this section 11-500.

(6)

Plans and other documents exhibiting compliance with any other requirements contained in this ordinance for the special use proposed.

(7)

Such additional plans and information as the director determines are necessary and desirable for adequate review.

(8)

The fee prescribed by section 11-104.

(B)

Review by staff. The director shall review the application to determine if the application's contents are complete and adequate for appropriate review and shall send the application to other relevant departments for their review and recommendation. Upon receipt of the departments' recommendations, the director shall prepare a staff report indicating the departments' judgment on the merits of the application. If the director does not agree with a recommendation prepared by another department, that recommendation shall be set down separately and the reasons for the director's disagreement shall be included in the report.

(C)

Docketing. At the time the director determines that an application is complete, he shall schedule the matter for public hearing before the planning commission and shall confer with the city manager who shall schedule the matter for public hearing before the city council.

(D)

Recommendation by planning commission. The planning commission shall hold a public hearing, shall review the application and shall recommend to the city council that the application be approved, disapproved, or approved with conditions. The planning commission shall submit its recommendation to the city council together with its reasons therefor not later than three days prior to the city council hearing on the application. If the planning commission determines that it requires additional information in order to render its decision, it may defer action on the application in order to receive such information.

(E)

Action by city council. The city council shall hold a public hearing, shall review the application and recommendation of the planning commission and shall act on the application by approving it, disapproving it, or approving it with conditions. If the city council determines that it requires additional information in order to render its decision, it may defer action on the application in order to receive such information.

(4573, § 1, 12-13-08)

(A)

The city council may approve the application, provided all regulations and provisions of law have been complied with, if it finds that the use for which the permit is sought:

(1)

Will not adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use;

(2)

Will not be detrimental to the public welfare or injurious to property or improvements in the neighborhood; and

(3)

Will substantially conform to the master plan of the city.

(B)

In reviewing the application, the city council may take into consideration the following factors where it determines that such factors are relevant and such consideration appropriate:

(1)

Whether the proposed use will adversely affect the safety of the motoring public and of pedestrians using the facility and the area immediately surrounding the site.

(2)

Whether the glare of vehicular and stationary lights will affect the established character of the neighborhood, and to the extent such lights will be visible from any residential zone, whether measures to shield or direct such lights so as to eliminate or mitigate such glare are proposed.

(3)

Whether the street size and pavement width in the vicinity is or will be adequate for traffic reasonably expected to be generated by the proposed use.

(4)

Whether the location and type of signs and the relationship of signs to traffic-control is appropriate for the site and whether such signs will have an adverse effect on any adjacent properties.

(5)

Whether adequate access roads or entrance or exit drives will be provided and will be designed so as to prevent traffic hazards and to minimize traffic congestion in public streets and alleys.

(6)

Whether the proposed use will adequately provide for safety from fire hazards, and have effective measures of fire control.

(7)

Whether the proposed use will increase the hazard to adjacent property from flood, increased runoff or water damage.

(8)

Notwithstanding any other provisions of the city code, whether the proposed use will have noise characteristics that exceed the sound levels that are typical of permitted uses in the zone.

(9)

Whether the proposed use will interfere with any easements, roadways, rail lines, utilities and public or private right-of-way.

(10)

Whether the proposed use will have any substantial or undue adverse effect upon, or will lack amenity or will be incompatible with, the use or enjoyment of adjacent and surrounding property, the character of the neighborhood, traffic conditions, parking, utility facilities, and other matters affecting the public health, safety and general welfare.

(11)

Whether the proposed use will be constructed, arranged and operated so as not to dominate the immediate vicinity or to interfere with the development and use of neighboring property in accordance with the applicable zone regulations. In determining whether the proposed use will so dominate the immediate neighborhood, consideration may be given to:

(a)

The location, nature, height, mass and scale of buildings, structures, walls, and fences on the site; and

(b)

The nature and extent of landscaping and screening on the site.

(12)

Whether the proposed use will destroy, damage, detrimentally change or interfere with the enjoyment and function of any significant topographic or physical features of the site.

(13)

Whether the proposed use will result in the destruction, loss or damage of any natural, scenic or historic feature of significance.

(14)

Whether the proposed use otherwise complies with all applicable regulations of this ordinance, including lot size requirements, bulk regulations, use limitations, and performance standards.

(15)

Whether off-street parking and loading areas will be provided in accordance with the standards set out in Article VIII of this ordinance, and whether such areas will be screened from any adjoining residential uses and located so as to protect such residential uses from any injurious effect.

(16)

Such other land use and land development considerations the city determines are appropriate and relevant to the application under review.

In approving a special use permit, the city council may impose any conditions and restrictions that it determines are necessary and desirable to ensure that the use will further those considerations enumerated in section 11-504. If imposed, such conditions shall become part of the legal requirements of the special use permit and violations of or failure to conform to such conditions shall constitute violations of this ordinance and constitute cause to revoke the permit.

(A)

Revocation and suspension. After notice and a public hearing, the city council may revoke or suspend any special use permit approved by it upon proof that the holder of the permit has failed to comply with any law, including, without limitation, the conditions subject to which the special use permit was granted.

(B)

Termination of use. A special use permit shall cease to be valid if the use for which such permit is granted is not operated for a continuous period of two years or more.

(C)

Commencement of use required.

(1)

Use without new construction. A special use permit granted under this section 11-500 that does not involve new construction shall become void unless operation of the use is commenced within a period of 18 months from the date that the permit was approved and is thereafter diligently pursued. If an application to extend a special use permit is filed with the director prior to the expiration of its term, and after compliance with the notice and hearing requirements for an original special use permit application, the city council may grant an 18 month extension of the permit.

(2)

Use with new construction.

(a)

Construction to begin within 36 months. A special use permit approved pursuant to the provisions of this section 11-500 that involves new construction shall expire and become null and void as to any uncommenced construction and any uncompleted construction, unless substantial construction of the project approved in such permit is commenced within the period established pursuant to section 11-418 of the ordinance unless the permit is one that involves more than seven acres and the applicant requests and council approves a different time period.

(b)

Extension of time allowed under certain conditions. An extension of time may be permitted by city council under the same conditions and procedures as those provided for in section 11-418(A).

(c)

Evidentiary standards for "substantial construction" and "due diligence." As used in this section 11-506, the terms "substantial construction" and "due diligence" shall have that meaning provided in section 11-418(E).

(d)

Finding that permit has expired. The procedures by which the director may make a finding that a special use permit has expired and by which that finding may be challenged shall be those provided in section 11-418(G).

(e)

Application to site plans approved as part of special use permit. The provisions of this subsection shall control the validity of all site plans, preliminary, final or combined, approved as part of a special use permit, and no such site plan shall continue in force and effect beyond the expiration of the special use permit by which such site plan was approved.

(f)

Refund of fees. Fees and contributions paid by the applicant to the city in connection with a project, except application and on-site inspection fees, shall be proportionately refunded if a special use permit expires under the provisions of this section.

(3)

"New construction" defined. For purposes of this section 11-506(C), the term "new construction" shall mean that construction, development or improvement which requires the approval of a site plan pursuant to section 11-403.

(4)

Application to previously issued permits. The provisions of this section 11-506(C) shall apply to all special use permits approved after April 1, 2009, and to any application for an extension of a special use permit, regardless of when approved, properly filed after April 1, 2009.

If an application for a special use permit is denied by city council, neither the planning commission nor city council shall consider an application for the same special use on the same site again within one year of the date of denial unless the new application differs in a substantial and material way from the prior one, in which case it may be reconsidered after six months.

The issuance of a special use permit shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for any permits or approvals which may be required by the codes and ordinances of the city, including but not limited to an approved final site plan, a building permit, a certificate of occupancy and subdivision approval.

For any use that now requires a special use permit, whether or not a special use permit has been granted previously, any change in the nature of the use or any enlargement, extension or increase in the intensity of that use shall require a separate special use permit issued by the city council, unless the change qualifies for administrative approval as a minor change to an approved special use permit under section 11-511.

(A)

The owner or occupant of any property for which a special use permit has been approved shall appropriately locate and display in a conspicuous and publicly accessible place a copy of the special use permit certificate provided by the city. Such certificate shall inform the public of its right to examine the list of conditions associated with the permit. A copy of the list of conditions associated with the permit shall be kept on the premises and made available for examination by the public upon request.

(B)

Unless otherwise provided in the special use permit, the provisions of this section 11-510 shall apply to special use permits issued under the provisions of sections 11-600 (residential cluster development) and 12-400 (use of substandard lots in certain residential zones) only during the period of construction of the use authorized by such permit. The period of construction shall extend from the first issuance of a grading or building permit until such time as the last final certificate of occupancy required in connection with the use is issued.

The director is authorized to approve the following amendments to special use permits under the following circumstances and procedures:

(A)

Amendments authorized.

(1)

Change in ownership. Where an application is necessitated solely by a change in ownership of the use, the director may administratively approve such application and transfer the special use permit to the new applicant after determining that there have been no substantiated violations of the special use permit conditions which were not corrected immediately, constitute material or repeat violations or which created a material and direct adverse impact on the surrounding community.

(2)

Minor amendment. The director may approve changes if:

(a)

The existing special use is not an automobile service station; outdoor live entertainment; drive through facility; or recreation and entertainment use, outdoor;

(b)

The proposal will not increase gross floor area occupied by the use by more than one-third;

(b.1)

The proposal complies with the standards for administrative approval for the same use under section 11-513;

(c)

There have been no substantiated violations of the special use permit conditions within the last five years; and

(d)

The proposal does not change conditions established to address community concerns.

(3)

Special events. Notwithstanding any provision of this ordinance to the contrary, the director may approve a temporary extension in the hours of operation of a business subject to an approved special use permit, to coincide with the hours of operation of an event, promotional program or city-sponsored festival in which the business is participating. The procedures required under this section 11-511 shall not apply in such cases.

(B)

New conditions. New conditions or amendments to existing conditions may be added if they are either:

(a)

Standard conditions promulgated by the director, approved by city council and agreed to by the applicant in writing; or

(b)

Such additional conditions as the director finds necessary for the public benefit, in keeping with the use and the special use permit approved therefor, and agreed to by the applicant in writing.

(C)

Procedure.

(1)

The director shall placard the property, cause email notice to the affected civic and business associations, send eNews or equivalent electronic notice, and prominently post a list of pending administrative applications on the department web page for review by the public. Such notice shall be given at least 14 days prior to the approval of an amendment under this section.

(2)

An application for an administrative approval under this section 11-511 which is not approved by the director shall be subject to the same procedural requirements of any other application for a special use permit.

(3)

The director is authorized to issue regulations governing administrative approvals issued under this section 11-511.

(4)

The director's decision may be appealed to the planning commission by a person affected by the decision by filing a notice of appeal with the department of planning and zoning within 30 days from the date of the decision appealed. The notice shall be a written statement specifying the grounds on which the appellant is affected and the basis of the appeal. The planning commission shall hold a public hearing on the appeal, with notice pursuant to section 11-300 provided, and may affirm, reverse or modify the director's decision, or vacate the decision and remand the matter to the director for further consideration.

No special use permit shall be required for the following development features when the location, size and design is included as part of a site plan or special use permit approval:

(A)

Temporary trailer used for model sales offices in conjunction with a construction project;

(B)

Tandem and reduced size parking spaces in conjunction with single-unit, two-unit, multi-unit (up to four units), and townhouse projects; and

(C)

Increase in height of a mechanical penthouse when necessary in order to meet the minimum needs of a building.

An applicant may seek the director's approval of a use identified in this ordinance as one for which administrative special use permit approval is available pursuant to the standards and procedures outlined in this section.

(A)

Jurisdiction and procedures for administrative approval.

(1)

An applicant for an administrative SUP under this section shall file an application with the director on such forms and subject to such procedures as the director may establish for the purpose. The application shall include a statement identifying the applicant as required by section 11-503 of this ordinance.

(2)

Notice of a pending administrative permit application shall be made in a newspaper of general circulation in the city, posted on the subject property, given to nearby civic and business associations by email, by eNews or equivalent electronic notice, and prominently posted on the department web page in a list of pending administrative applications for review by the public. Such notice shall be given at least 21 days prior to the approval of an amendment under this section. The public may submit comments to the director regarding the application.

(3)

The application shall be reviewed for compliance with this section 11-513 as well as with applicable provisions of section 11-500.

(4)

As an alternative to an administrative approval, an applicant may choose to seek special use permit approval pursuant to section 11-500 of the zoning ordinance.

(5)

After review the director may approve, approve with conditions, or deny the application. An approval by the director shall be deemed to have the force and effect of a special use permit, under section 11-500, except that provisions of 11-507 shall not apply.

(6)

The director may determine that administrative approval is not appropriate and that special use permit approval shall be required if the proposal will not be compatible with the adjacent and surrounding properties, if the applicant fails to meet the standards for the permit, if the applicant fails to consent to the conditions of the administrative permit or if after consultation with the police department it is determined that there are criminal or nuisance activities or zoning ordinance violations at the proposed location or with the proposed operator.

(7)

In the event any person, whether owner, lessee, principal, agent, employee or otherwise, materially fails to comply with any standard of this section, the director may suspend or revoke the administrative approval in whole or in part and on such terms and conditions as deemed necessary to effect the cure of such failure. The applicant or his successor in interest may appeal this suspension or revocation pursuant to section 11-205(B) et seq. of this ordinance, except that such appeal shall be heard by the planning commission.

(B)

Appeals.

(1)

Any person or civic or business association affected by a decision of the director issued pursuant to section 11-513(A)(5) may appeal the decision to the planning commission, by filing a notice of appeal, in writing, stating the grounds on which the person is affected and the grounds of appeal, with the director within 30 days of the issuance of the decision.

(2)

The planning commission shall conduct a public hearing on any appeal filed pursuant to section 11-513(B)(1), notice for which shall be provided in accordance with the applicable provisions of section 11-300 of this ordinance. Following the conclusion of the hearing, the planning commission may affirm, reverse or modify the decision of the director, or vacate the decision and remand the matter to the director for further consideration.

(3)

Any person affected by a decision of the planning commission issued pursuant to section 11-513(B)(2) may appeal the decision to the city council, by filing a notice of appeal, in writing, stating the grounds on which the person is affected and the grounds of appeal, with the city clerk within five days of the issuance of the decision.

(4)

The city council shall conduct a public hearing on any appeal filed pursuant to section 11-513(B)(3), notice for which shall be provided in accordance with the applicable provisions of section 11-300 of this ordinance. Following the conclusion of the hearing, the council may affirm, reverse or modify the decision of the commission, or vacate the decision and remand the matter to the planning commission or the director for further consideration.

(C)

General standards for all administrative uses:

(1)

The administrative permit shall be granted to the applicant only or to any business or entity in which the applicant has a controlling interest. Any change in the ownership of the use that is the subject of the administrative permit may be transferred administratively with the approval of the director pursuant to the requirements of section 11-511 of this ordinance.

(2)

The applicant shall provide information about alternative forms of transportation to access the site, including but not limited to printed and electronic business promotional material, posting on the business website, and other similar methods.

(3)

The applicant shall encourage its employees to use public transportation to travel to and from work.

(4)

At such time as an organized parking program is adopted by city council to assist with employee or customer parking for the area in which the subject property is located, such as a shared parking program or the Park Alexandria program, the applicant shall participate in the program.

(5)

The applicant shall require its employees who drive to work to use off-street parking.

(6)

Trash and garbage shall be stored inside or in sealed containers that do not allow odors to escape or invasion by animals. No trash and debris shall be allowed to accumulate outside of those containers. Outdoor trash receptacles shall be screened to the satisfaction of the director.

(7)

Litter on the site and on public rights-of-way and spaces adjacent to or within 75 feet of the premises shall be monitored and picked up at least twice during the day and at the close of the business, and more often if necessary, to prevent an unsightly or unsanitary accumulation, on each day that the business is in operation.

(8)

Reserved.

(9)

The administrative permit approved by the director pursuant to this section 11-513 shall be displayed in a conspicuous and publicly accessible place. A certificate provided by the city shall inform the public of its right to examine the list of standards associated with the permit. A copy of the list of standards associated with the permit shall be kept on the premises and made available for examination by the public upon request.

(10)

Improvements may be required to the facade or the front of the business establishment, including landscaping and site improvements, consistent with design guidelines and principles enumerated in the adopted small area plan for the neighborhood, and as determined by the director to be necessary and appropriate to achieve the design and streetscape objectives of that plan.

(11)

The applicant shall conduct employee training sessions on an ongoing basis, including as part of any employee orientation, to discuss all SUP provisions and requirements, and methods to prevent underage sales of alcohol.

(12)

The director may require conditions additional to those listed in the standards of this section if the director finds it to be reasonable to support the use and its compatibility with surrounding uses and the neighborhood.

(13)

The request will not significantly and negatively impact nearby residential neighborhoods.

(14)

The director of planning and zoning shall review the special use permit one year after it has been operational, and then again every three years for compliance with all conditions and may docket the matter for consideration by the planning commission and city council if there have been documented violations of the permit conditions which were not corrected immediately, constitute repeat violations or which create a direct and immediate adverse zoning impact on the surrounding community; or the director has determined that new or revised conditions are needed to offset land use impacts not addressed in the City Code.

(D)

Specific standards for day care in a church or school building.

(1)

The facility shall obtain all required state, federal and local licenses and certificates prior to opening its place of business.

(2)

The facility shall provide adequate drop off and pick up facilities so as to create minimal impact on child safety and pedestrian and vehicular traffic.

(3)

The facility shall be located on a site so that adequate distance or buffering is provided to protect nearby residential uses from impacts from the use.

(E)

Reserved.

(F)

Specific standards for outdoor markets:

(1)

On and off premises alcohol sales, consistent with a valid ABC license is permitted;

(2)

No on-site storage of trailers is permitted;

(3)

The hours of operation shall be limited to 7:00 a.m. to 10:00 p.m.;

(4)

Limited live entertainment may be offered, and must comply with the city's noise ordinance;

(5)

The applicant shall be present prior to the opening of the market and at the closing of the market and shall oversee the cleanup of the lot and adjacent sidewalk areas at the end of the market;

(6)

The applicant shall prepare a plan for the layout of the market for approval by the director prior to beginning operations, and shall obtain approval of the director for any changes to those plans;

(7)

The applicant shall prepare a set of rules for operation of the market for approval by the director who shall review any changes to those rules. Copies of those rules shall be given to each vendor, to nearby residents and businesses, and to the civic associations in the vicinity.

(G)

Specific standards for outdoor garden center:

(1)

The site for the outdoor garden center may be no larger than 10,000 square feet.

(2)

The hours of operation shall be limited to between 7:00 a.m. and 9:00 p.m. Monday through Saturday, and from 8:00 a.m. to 8:00 p.m. on Sunday.

(3)

A plan showing the layout of the garden center, including areas for storage, on site deliveries, and vehicles; appropriate screening; the design of any building or structure; and the view from Mount Vernon Avenue and neighboring properties shall be submitted for review and approval by the director.

(4)

Deliveries shall be limited to during normal business hours and shall occur in the location shown in the approved plan.

(5)

The use shall be located a suitable distance or otherwise protected from nearby residential uses in order to avoid undue impacts.

(H)

Reserved.

(I)

Specific standards for catering operation.

(1)

The applicant shall post the hours of operation at the entrance of the business.

(2)

No food, beverages, or other material shall be stored outside.

(3)

The applicant shall control cooking odors and smoke from the property to prevent them from becoming a nuisance to neighboring properties, as determined by transportation and environmental services.

(4)

Deliveries to the business are prohibited between 11:00 p.m. and 7:00 a.m.

(5)

The applicant shall provide storage space for solid waste and recyclable materials containers as outlined in the city's "Solid Waste and Recyclable Materials Storage Space Guidelines", or to the satisfaction of the director of transportation and environmental services. The city's storage space guidelines and required recycling implementation plan forms are available at: www.alexandriava.gov or contact the city's solid waste division at 703-519-3486 ext. 132.

(6)

Kitchen equipment shall not be cleaned outside, nor shall any cooking residue be washed into the streets, alleys or storm sewers.

(J)

Specific standards for light automobile repair.

(1)

Repair work done on the premises shall be limited to light automobile repair.

(2)

No repair work shall be done outside.

(3)

No junked, abandoned, or stripped vehicles shall be parked or stored outside.

(4)

No vehicles shall be loaded or unloaded on the public right-of-way.

(5)

No debris or vehicle parts shall be discarded on the public right-of-way.

(6)

No vehicles shall be displayed, parked, or stored on a public right-of-way.

(7)

No vehicle parts, tires, or other materials shall be permitted to accumulate outside except in a dumpster or other suitable trash receptacle or enclosure.

(8)

The area around the building shall be kept free of debris and maintained in an orderly and clean condition.

(9)

All waste products including but not limited to organic compounds (solvents), motor oils, and antifreeze shall be disposed of in accordance with all local, state and federal ordinances or regulations and shall not be discharged to the sanitary or storm sewers.

(10)

The applicant shall comply with the City of Alexandria Best Management Practices manual for automotive related industries. Contact the T&ES Engineering division (703)383-4327 to obtain a copy of the manual.

(11)

The applicant shall control odors, smoke and any other air pollution from operations at the site and prevent them from leaving the property or becoming a nuisance to neighboring properties, as determined by the department of transportation and environmental services.

(12)

Car wash discharges resulting from a commercial operation shall not be discharged into a storm sewer. It is recommended that the car washes be done at a commercial car wash facility.

(K)

Specific standards for animal care facility with overnight accommodations.

(1)

The applicant shall comply with the Virginia Department of Agriculture and Consumer Services Division of Animal Industry Services laws and Animal Care, Control, Property and Protection Laws of Virginia regarding boarding establishments.

(L)

Specific standards for restaurants.

(1)

The applicant shall post the hours of operation.

(2)

No new meals may be ordered and no alcohol served after the closing hour, and all patrons must leave by one hour after the closing hour.

(3)

Limited, live entertainment may be offered and must comply with the city's noise ordinance. No admission or cover fee shall be charged. All entertainment shall be subordinate to the principal function of the restaurant as an eating establishment. Any advertising of the entertainment shall reflect the subordinate nature of the entertainment by featuring food service as well as the entertainment.

(4)

Restaurant-managed delivery vehicles must be provided with dedicated off-street parking spaces for each delivery vehicle.

(5)

On and off premises alcohol sales, consistent with a valid ABC license are permitted.

(6)

No food, beverages, or other material shall be stored outside.

(7)

Kitchen equipment shall not be cleaned outside, including floor mats, nor shall any cooking residue be washed into the streets, alleys or storm sewers.

(8)

The applicant shall control odors, smoke and any other air pollution from the operations at the site and prevent them from leaving the property or becoming a nuisance to neighboring properties, as determined by the department of transportation and environmental services.

(9)

Deliveries to the business are prohibited between 11:00 p.m. and 7:00 a.m.

(10)

The applicant shall provide storage space for solid waste and recyclable materials containers as outlined in the city's "Solid Waste and Recyclable Materials Storage Space Guidelines", or to the satisfaction of the director of transportation and environmental services. The city's storage space guidelines and required. Recycling implementation plan forms are available at: www.alexandriava.gov or contact the city's solid waste division at 703-519-3486 ext. 132.

(11)

Live entertainment is not permitted, as defined in section 2-164.1.

(12)

For restaurants within the Old Town Small Area Plan, all new restaurant uses and expansion or intensification of existing restaurant uses must satisfy the Old Town Restaurant Policies.

(13)

For restaurants within the Waterfront Small Area Plan, all new restaurant uses and expansion or intensification of existing restaurant uses must satisfy the Waterfront Restaurant Policies.

(M)

Specific standards for outdoor dining on private property.

(1)

Reserved.

(2)

Outdoor dining, including all its components such as planters, wait stations and barriers, shall not encroach onto the public right-of-way unless authorized by City Code section 5-2-29.

(3)

A maximum of 49 seats may be located at outdoor tables.

(4)

The closing hours of operation for the outdoor dining shall be limited to 11:00 p.m. Within the NR Zone and the Mount Vernon Avenue Urban Overlay Zone areas, outdoor dining shall be closed and cleared of all customers by 10:00 p.m. Sunday through Thursday and by 11:00 p.m. on Friday and Saturday. Within the Old Town Small Area Plan, outdoor dining shall be closed and cleared of all customers by 11:00 p.m. daily.

(5)

No live entertainment shall be permitted in the outdoor seating area.

(6)

Outdoor seating areas shall not include signage on outdoor dining furniture or enclosures, including on umbrellas.

(7)

On and off premises alcohol sales, consistent with a valid ABC license are permitted.

(8)

A plan shall be submitted with dimensions showing the layout for the outdoor dining area and depicting the design, location, size and space of the dining area, chairs, tables, barriers, umbrellas planters, wait stations, and other components to be located within the area, and such additional information as the director may reasonably require.

(9)

The outdoor dining area shall be cleared and washed at the close of each business day that it is in use.

(N)

Specific standards for valet parking.

(1)

The applicant shall submit a detailed plan for approval by the director and the director of transportation and environmental services. The plan shall include the following at a minimum:

(a)

The location of the drop off area as well as the location for the parked vehicles to be stored;

(b)

The proposed days and hours of operation of the valet parking plan;

(c)

The number of spaces available at the vehicle storage site, which shall be of sufficient capacity for the use or uses from which vehicles will be valeted;

(d)

Adequate assurance that the owner and operator of the vehicle storage site is agreeable to the proposed valet plan;

(e)

The size and design of the drop off site and identification of any on street parking spaces that will be lost during the period that the valet parking plan is in effect, such spaces to be kept to a minimum;

(f)

Demonstration that the location of the drop off site will not interfere with traffic, remaining parking, bus stops, or transit passengers or pedestrians;

(g)

The proposed graphics for the drop off site, including signage and uniformed staff, with sufficient visibility but designed to be compatible with the streetscape as determined by the director;

(h)

The proposed number of attendants, which shall be sufficient to adequately staff the operation; and

(i)

If the proposed valet plan includes more than one business, the identity of the party or entity responsible for compliance with the approved valet parking plan.

(2)

No vehicle shall be parked or temporarily stored by an attendant on streets, sidewalks.

(3)

No structures are permitted in conjunction with a valet parking program, unless associated with a shared parking program among several businesses, and only after the design is reviewed for comment by the board of architectural review.

(4)

The provisions of section 8-300 of this ordinance, requiring an SUP for valet parking, shall not apply for valet parking approved under this section 11-513(M). In addition, a permit approved under this section may authorize valet parking to displace otherwise required parking spaces, notwithstanding the requirements of section 8-200, if it is determined that those spaces are not in demand during the times that the valet parking program will be in effect and that the use of the spaces for the valet parking program will reduce potential parking congestion on the public streets.

(O)

Application to certain development special use permits. The provisions of this section 11-513 have no application to any CO planned residential/commercial development and shall not preempt any conditions in any DSUP or CDD concept plan adopted prior to or after December 13, 2008, which conditions pertain to the establishment of restaurants and other uses which may be classified as permitted uses or as administrative SUP uses under this section 11-513 and under Ordinance #4573, adopted December 13, 2008, except as provided below:

(1)

Cameron Station, DSUP #2004-0026. In the commercial space along Brenman Park Drive, the following uses shall be permitted uses and the provisions of this section 11-513(O)(1) shall preempt any conflicting provisions of DSUP 2004-0026:

(a)

Business professional offices;

(b)

Catering;

(c)

Church;

(d)

Reserved;

(e)

Day care center;

(f)

Health and athletic club or fitness studio;

(g)

Reserved;

(h)

Medical care facility;

(i)

Medical laboratory;

(j)

Health profession office;

(k)

Personal service establishments;

(l)

Restaurant; and

(m)

Retail shopping establishments.

(P)

Specific standards for private schools, academic, and day care centers. Each such use shall:

(1)

Obtain all required state, federal and local licenses and certificates prior to opening its place of business;

(2)

Provide adequate drop off and pick-up facilities so as to create minimal impact on child safety and pedestrian and vehicular traffic; and

(3)

Be located so as not to create obvious conflicts between children and dangerous or otherwise inappropriate uses.

(Q)

Specific standards for co-living dwellings.

(1)

A maximum of two private living areas per co-living dwelling are permitted to have double occupancy.

(2)

Lease agreements with tenants must be for 30 days or longer.

(3)

One wall sign with the contact information for a responsible party (including the name of the manager, email address, and phone number) is required at the entrance of buildings with a minimum of one square foot and maximum of two square feet. This sign is excludable for the purpose of calculating the square footage of wall signs permitted on the property.

(R)

Specific standards for child and elder care homes for six to nine persons. Each home operator of the use shall:

(1)

Comply with the requirements in section 7-500(A);

(2)

Obtain all required state, federal and local licenses and certificates prior to operation;

(3)

Unless exempted by section 11-513(R)(4) below, provide a minimum of 75 square feet of outdoor play area for each child above the age of two, and the play area shall be:

(a)

Shown on the recorded plat of the lot in question; and

(b)

Fenced unless the applicant can show that the play area provides proper protection from traffic and other hazards and to neighboring yards;

(4)

No play area shall be required when the child care home is located within 500 feet of a park or playground that has sufficient capacity to accommodate the children and for which the park owner's permission has been obtained; and

(5)

Provide adequate drop off and pick up facilities so as to create minimal impact on child or elder safety and pedestrian and vehicular traffic.

(S)

Specific standards for automobile and trailer rental or sales area. Each use shall:

(1)

Limit the parking lot for parking of vehicles in conjunction with the business;

(2)

Not perform any repair work on the site;

(3)

Maintain adequate appearance of the site;

(4)

Park all stored vehicles off-street and not in any portion of public way;

(5)

Ensure no junked, abandoned, stripped, or visibly damaged vehicles are be displayed, parked, or stored outside; and

(6)

For car wash discharges resulting from a commercial operation, not discharge into a storm sewer. It is recommended that the car washes be done at a commercial car wash facility.

(T)

Specific standards for motor vehicle parking or storage for more than 20 vehicles. Each use shall:

(1)

Limit the parking lot for parking of vehicles in conjunction with the business;

(2)

Not perform any repair work on the site;

(3)

Maintain adequate appearance of the site;

(4)

Park all stored vehicles off-street and not in any portion of public way;

(5)

Ensure no junked, abandoned, stripped, or visibly damaged vehicles are be displayed, parked, or stored outside; and

(6)

For car wash discharges resulting from a commercial operation, not discharge into a storm sewer. It is recommended that the car washes be done at a commercial car wash facility.

(U)

Specific standards for trailers at public schools.

(1)

The administrative special use permit approval shall expire five years from the date of approval;

(2)

All classroom trailers shall be located so as to reduce visibility from public rights-of-way and from nearby residentially zoned properties, and the design for trailers shall be compatible with applicable historic district and/or Master Plan design guidelines to the satisfaction of the director of planning and zoning;

(3)

Loudspeakers shall be prohibited from the exterior of the building, and no amplified sounds shall be audible at the property line;

(4)

Parking and circulation must be to the satisfaction of the director of transportation and environmental services;

(5)

Impacts to parking that meets recreational needs during non-school hours should be minimized; and

(6)

Trailers shall not be used for storage purposes.

(V)

Specific standards for light assembly, service, and crafts.

(1)

Materials shall be stored within an enclosed building.

(2)

The area around the building shall be kept free of debris and maintained in an orderly and clean condition.

(3)

The applicant shall control odors, smoke and any other air pollution from operations at the site and prevent them from leaving the property or becoming a nuisance to neighboring properties, as determined by the department of transportation and environmental services.

(4)

Equipment shall not be cleaned outside and residue washed into the streets, alleys or storm sewers.

(5)

Deliveries to the business are prohibited between 11:00 p.m. and 7:00 a.m.

(W)

Specific standards for signs.

(1)

All signs and sign structures shall comply with the height regulations of the zone in which they are located.

(2)

Signs must be located on a site that has one or more of the following:

(a)

A lot size of 15,000 square feet or more;

(b)

Three or more businesses;

(c)

Frontage on more than one street; or

(d)

Frontage exceeding 400 feet.

(3)

For temporary signs only, the administrative special use permit shall expire two years from the date of approval.

(4)

The wall sign area ratio, including temporary signs, shall not exceed 1:2.

(5)

The sign is not a prohibited sign pursuant to section 9-203.

(6)

The number of freestanding signs shall not exceed the maximum number permitted by more than 50 percent. If fewer than two freestanding monument signs are permitted pursuant to section 9-201, no more than one additional freestanding monument sign shall be permitted with administrative special use permit approval.

(7)

The freestanding sign shall not have a sign area or height of more than one-third larger than the maximum sign area and taller than the height otherwise permitted.

(8)

Digital signs shall comply with the following criteria:

(a)

Signs shall comply with the illumination limitations in section 9-204(A);

(b)

Text, graphics, and images shall not be animated, move, or flash;

(c)

Signs shall have an automatic photocell dimmer; and

(d)

The changing of text or graphics shall occur no more than two times per minute.

A development special use permit approval that includes a condition prohibiting residents from obtaining parking permits pursuant to the residential permit parking program in the City Code shall not prohibit those residents from obtaining visitor, guest or business/contractor permits/passes pursuant to the rules of section 5-8-74(2), (3) and (4) of the City Code.

(Ord. No. 3675, § 1, 10-16-93; Ord. No. 3711, §§ 1, 2, 3-19-94; Ord. No. 3712, § 1, 3-19-94; Ord. No. 3774, § 2, 1-21-95; Ord. No. 3800, §§ 3, 4, 5-13-95; Ord. No. 3923, § 7, 4-12-97; Ord. No. 4040, §§ 1, 2, 4-17-99; Ord. No. 4356, §§ 1, 2, 6-12-04; Ord. No. 4373, §§ 1, 2, 1-25-05; Ord. No. 4588, § 4, 4-28-09; Ord. No. 4573, § 1, 12-13-08; Ord. No. 4634, § 1, 11-21-09; Ord. No. 4677, § 7, 6-22-10; Ord. No. 4791, § 2, 2-23-13; Ord. No. 4844, § 1, 11-16-13; Ord. No. 5027, § 2, 6-18-16; Ord. No. 5034, § 2, 6-28-16; Ord. No. 5035, § 1, 6-28-16; Ord. No. 5037, § 1, 9-17-16; Ord. No. 5073, § 3, 6-27-17; Ord. No. 5113, § 4, 2-24-18; Ord. No. 5155, § 62, 6-26-18; Ord. No. 5189, § 10, 12-15-18; Ord. No. 5303, § 8, 10-17-20; Ord. No. 5383, § 26, 11-13-21; Ord. No. 5405, § 7, 2-12-22; Ord. No. 5490, § 8, 5-13-23; Ord. No. 5515, § 10, 12-16-23; Ord. No. 5529, § 8, 4-13-24; Ord. No. 5579, § 5, 4-26-25)

The city council may grant, as a special use permit, approval for a cluster development proposal pursuant to the provisions of this section 11-600 and those of section 11-500 relating to special use permits generally.

The purpose of cluster development is to permit a procedure for development which will result in improved living environments; which will promote more economic development layout; which will encourage a variety of types of residential dwellings; which will encourage ingenuity and originality in total subdivision and individual site design; and which can preserve open and usable space to serve recreational, open space, scenic, public service, and other purposes related thereto, while retaining the densities established under the applicable zoning district. To achieve these goals:

(A)

Variations in lot areas and lot widths may be permitted.

(B)

Procedures are established to ensure adequate maintenance and use of open space areas.

(C)

Procedures are established to ensure adequate protection of existing and potential developments adjoining the proposed cluster development.

(A)

Where permitted. Cluster developments shall be permitted for single-unit, two-unit, and townhouse dwellings where such development is permitted.

(B)

Development size. Cluster developments are only permitted on land which could have accommodated five or more dwelling units if developed under the applicable zone regulations except that cluster developments that are found by the planning commission to be a logical extension of an existing or approved cluster development may contain fewer dwelling units.

(C)

Permitted uses. The permitted uses in a cluster development shall be those residential uses permitted in the applicable zone as well as private and public recreational facilities.

(D)

Density. The density of the cluster development shall not exceed the floor area and number of units which could have been developed under the applicable zone regulations without cluster approval and may, depending on the design and configuration achieved in the cluster development plan, be reduced.

(E)

FAR. The maximum floor area permitted in the cluster development shall be determined by calculating that floor area which could be developed on the total site area which is the subject of the cluster special use permit, pursuant to section 1-400(B)(3).

(F)

Height. No deviation from the height specified in the applicable zoning or height district is permitted.

(G)

Area requirements. Modification of yard and lot requirements including minimum lot area and widths may be permitted. The yard regulations applicable to any property abutting a residential cluster development shall also be applicable to the exterior boundary of the cluster development where abutting unless because of the location or other special circumstance of the cluster or abutting development, no benefit will be served by such a yard requirement. Such modifications and variations must be shown on the cluster development plan.

(H)

Parking. The parking requirements of Article VIII except for section 8-200(C)(1) thereof shall be applicable.

(A)

Lot size reduction. In each zone in which cluster development is allowed, the lot size may be reduced provided that an equivalent amount of suitable land in open space or common area is preserved and maintained for its scenic or historic value, or for schools, community buildings, historic buildings or sites, or related uses. Such common areas may be used as open space, recreational or parking areas. At least 15 percent of the common area provided shall be open and usable space which is coterminous and undivided and to which direct access is provided from each dwelling unit. The cluster development plan shall be reviewed to determine whether the open and usable space is sufficient and adequate in location, size and function.

(B)

Private ownership. Cluster open space shall be protected by legal arrangements, satisfactory to the city council, sufficient to assure its maintenance and preservation for the purpose for which it is intended. Covenants or other legal arrangements shall specify ownership of the cluster open space; method of maintenance, responsibility for maintenance, maintenance taxes and insurance; compulsory membership and compulsory assessment provisions; guarantees that any association formed to own and maintain cluster open space will not be dissolved without the consent of the city council; and any other specifications deemed necessary by the city council.

(A)

Special use permit provisions applicable. An application for cluster development approval is an application for a special use permit and shall be treated and reviewed as such. The procedures and provisions of section 11-500 apply to cluster development as those procedures and provisions may be supplemented by this section 11-600.

(B)

Additional application material. An application for cluster development approval shall include those materials required for a special use permit application as specified in section 11-503, as well as the following:

(1)

A general site layout plan depicting the density, design and development potential of the subject property under all regulations of the applicable zone without a cluster design.

(2)

A preliminary subdivision plat which complies with the provisions of section 11-1700.

(3)

Such other detail, data and material as may be necessary to show conformance with the regulations and requirements of this section 11-600.

The application material shall collectively be referred to as a cluster development plan.

(C)

Public hearing schedule. At the time the director determines that the application is complete, he shall schedule the matter for public hearing before the planning commission and shall confer with the city manager who shall schedule the matter for public hearing before the city council.

(D)

Action by planning commission. The planning commission shall hold a public hearing and shall act on the matter by recommending approval, disapproval or approval with modifications or conditions. In the event the planning commission recommends approval, the applicant is not entitled to proceed with a final site plan or to record a subdivision plat unless he obtains council approval of the special use permit application. If the planning commission determines that it requires additional information in order to render its decision, it may defer action on the application in order to receive such information.

(E)

Action by city council. The city council shall act on the matter by approving, disapproving or approving the application with conditions or modifications. Approval of the application for cluster development by the city council shall constitute preliminary site plan approval and, if a preliminary subdivision plat has been approved by the planning commission, authorizes the chairman or vice-chairman and the director to sign and the applicant to record a subdivision plat pursuant to section 7-5-24 of the city code.

In reviewing an application for cluster development, the following issues and those for special use permits in section 11-504 shall be considered at a minimum:

(A)

That the proposed development will substantially conform to the master plan of the city.

(B)

That the proposed development complies with all applicable regulations of this ordinance except as modified pursuant to the authority of this section 11-600.

(C)

That the proposed development will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, parking, utility facilities, and other matters affecting the public health, safety, and general welfare.

(D)

That the proposed cluster development will be constructed, arranged, and operated so as not to dominate the immediate vicinity or to interfere with the development and use of neighboring property in accordance with the applicable zone regulations.

(E)

That the proposed cluster development will be served adequately by essential public facilities and services such as highways, streets, parking spaces, police and fire protection, drainage structures, refuse disposal, water and sewers, and schools.

(F)

That the proposed cluster development will not result in the destruction, loss or damage of any natural, scenic, or historic feature.

(G)

That individual lots, buildings, streets, and parking areas are designed and situated to minimize alteration of natural site features worthy of preservation.

(H)

That the cluster open space intended for recreation or public use is usable as determined by the size, shape, topographic, and location requirements of the particular purpose proposed for the site.

(I)

That the cluster open space shall include irreplaceable natural features if any are located in the tract (such as, but not limited to, stream beds, stands of trees and individual trees).

(J)

That the cluster open space intended for recreation or public use is easily accessible to pedestrians and that such accessibility meets the needs of the handicapped and elderly.

(K)

That the cluster development plan includes diversity and originality in lot layout and individual building design to achieve the best possible relationship between development and the land.

(L)

That individual lots, buildings, and units are arranged and situated to relate to surrounding properties, to improve the view from and the view of buildings, and to lessen the land area devoted to motor vehicle access.

(M)

That the cluster development plan includes due consideration for:

(1)

The arrangement and location of buildings, structures and spaces as they relate to the intent and purposes of this section 11-600;

(2)

The safe and convenient arrangement of pedestrian circulation facilities, roadways, driveways, off-street parking spaces, lighting and facilities for waste disposal;

(3)

The location and means of access to pedestrian areas and the separation of such areas from vehicular ways and parking areas;

(4)

The design of grades, paving, gutters and drainage necessary to handle stormwaters and to prevent erosion;

(5)

The provision of walls, fences, landscaping and increased setbacks when deemed necessary to minimize adverse effects on nearby properties and within the proposed development;

(6)

The treatment and extent of plazas, courts, terraces, recreational facilities and other open areas necessary or appropriate to the use or enjoyment of the development and the protection of the environment;

(7)

The provision for dedication of land for public rights-of-way, parks, schools and recreational space when necessary and appropriate to the development and the environs.

No special use permit for a residential cluster development approved by the city council shall be modified or amended thereafter, except in accordance with the procedures, requirements and standards set forth in this section 11-600; provided, however, that such minor modifications or amendments as are made necessary because of conditions attached to the special use permit, code requirements or more detailed plans may be approved by the director when such modifications or amendments are in keeping with the purpose and intent of the special use permit.

Within two years of approval, the permittee shall cause to be recorded in the deed book among the land records of the city, suitably indexed and in a form approved by the city attorney, a certificate of notice specifying the fact that the property is the subject of approval under this section 11-600 and that development of the property may occur only in compliance with the approved development plan, the terms of the special use permit, the regulations of this ordinance and all other applicable ordinances of the city. Construction may not commence until a certificate of notice is recorded under this section 11-608 unless city council has provided otherwise at the time of approval.

Any special use permit granted pursuant to this section 11-600 shall run with the land and be binding upon the applicant, the owner, the occupants and their heirs, successors and assigns.

(Ord. No. 3865, § 1, 5-18-96; Ord. No. 4040, §§ 1, 2, 4-17-99; Ord. No. 4356, § 2, 6-12-04; Ord. No. 5374, § 27, 10-16-21; Ord. No. 5515, § 10, 12-16-23)

(A)

There are certain land uses which, by their location, nature, size and/or density, or by the accessory uses permitted or required in connection therewith, or by certain operational or design and engineering characteristics, tend to cause traffic and related impacts which are contrary to the public health, safety and general welfare in that they lead to, generate or exacerbate: danger and congestion in travel and transportation upon the public streets, parking problems, harmful air pollution, wasteful energy consumption, excess noise, and other adverse impacts upon public and private transportation facilities, environmental quality, historic areas and other qualities of the city which make it a desirable, prosperous and attractive residential and commercial community. These uses present a disproportionate danger of such impacts relative to similar uses of a different size and density and to other uses permitted under this ordinance.

(B)

These uses may be allowed to locate within designated zones only under a special use permit, as provided in this section 11-700, which, through the imposition of pertinent conditions and requirements, shall ensure that the adverse and disproportionate traffic, transportation and related impacts of such uses are reduced to levels consonant with the public health, safety and general welfare, that surrounding land, structures, persons and property are adequately protected and that public and private transportation is facilitated.

(C)

The purpose of this section 11-700 is to mitigate the traffic, transportation and related impacts of such certain land uses through the requirement that a transportation management plan for such uses be prepared and that a special use permit be issued for such uses containing terms and conditions which require the implementation of an appropriate transportation management plan. The intent of the transportation management plan is to reduce single occupancy vehicle trips by:

•

Encouraging other forms of travel, including transit use, ridesharing, walking and bicycling to accomplish that reduction through site-specific controls and conditions;

•

Leveraging and sharing planned or existing TMPs and conditions in neighboring uses;

•

Fees paid to a citywide transportation demand management program;

•

Additional measures or a combination thereof, all in coordination with the city's overall transportation demand management program, Transportation Master Plan, and the Transportation chapter of the City of Alexandria Master Plan.

(A)

There is hereby created a transportation management plan (TMP) program designed to accomplish the purpose and intent of this section 11-700 by maximizing the mobility of all users by encouraging transit use, ridesharing, pedestrian and bicycle transportation to minimize single vehicle occupancy trips by motor vehicles and ensuring adequate transportation infrastructure and services to support future levels of development.

(B)

The TMP program shall consist of a citywide TMP (citywide TMP) as well as stand-alone TMP programs operated by individual developments.

(C)

The director of transportation and environmental services shall report on an annual basis to the transportation commission, the planning commission and city council on the status of the TMP program. The annual report shall be distributed to all developments that contribute to the city-wide and city-managed TDM fund.

(A)

There is hereby created a citywide, city-managed dedicated transportation demand management (TDM) fund (TDM fund) which will promote and create transportation alternatives to single occupancy vehicles that meet the goals of this section 11-700 and the transportation chapter of the City of Alexandria Master Plan.

(B)

Any payments made to the city as a result of the conditions or requirements of an approved TMP SUP shall be deposited into the city TDM fund.

(C)

Funds deposited into the city TDM fund shall be separately maintained and segregated and not subject to use other than for its approved program expenditures.

(D)

As part of its annual report on the status of the TMP program under section 11-702(B), the director of transportation and environmental services shall report on the status of the TDM fund, including how funds have been spent in the prior year and a proposed program of expenditures for the following year. After a public hearing and consideration by the transportation commission and the planning commission, each commission shall make a recommendation to city council, which shall adopt an annual program of TDM expenditures for the city.

Until July 1, 2023, each development for which a site plan is required pursuant to section 11-400 of this ordinance may be required to obtain approval of a TMP SUP, depending on its development tier and the requirements for participation outlined in this section 11-704.

(A)

Development tiers. The following development tiers represent a graduated level of development to which TMP requirements apply.

(1)

Tier one uses. The following levels of development typically have a relatively low level of traffic and related impacts and are regulated as a tier one use.

a)

Residential: More than 20 but no more than 99 residential units;

b)

Commercial or professional office space: More than 9,999 but no more than 99,999 square feet of floor area.

c)

Retail: Either more than 9,999 but no more than 74,999 square feet of floor area or more than 3,000 square feet but no more than 10,000 square feet of floor area with more than 50 peak hour trips during either peak hour as defined in the administrative regulations authorized by section 11-709.

d)

Hotels: 30 rooms or more; and

e)

Industrial or warehouse: 30,000 or more square feet of floor area.

(2)

Tier two uses. The following levels of development typically have a moderately high level of traffic and related impacts and are regulated as a tier two use.

a)

Residential: More than 99 but no more than 349 residential dwelling units;

b)

Commercial and/or professional office space: More than 99,999 square feet but no more than 249,000 square feet of floor area; and

c)

Retail space: More than 74,999 square feet but no more than 149,000 square feet of floor area.

(3)

Tier three uses. The following levels of development typically have a very high level of traffic and related impacts and are regulated as a tier three use.

a)

Residential: More than 349 dwelling units;

b)

Commercial and/or professional office space: More than 249,999 square feet of floor area; and

c)

Retail space: More than 149,999 square feet of floor area.

(4)

Mixed uses. For a development or building that includes more than one use, each use shall be separately assessed and the highest applicable tier shall apply to the whole development. If a development has more than one use in the same tier, then the next highest tier will be used to define the TMP development tier.

(5)

All other uses shall be exempt from the requirements of this section 11-700.

(B)

Program participation based on tier status.

(1)

Participation. Each TMP project, depending on its development tier, has the following requirements and options with regard to the type of TMP program in which it participates:

a)

A tier one use shall be required to participate in the citywide TMP program.

b)

A tier two use shall have the option, with the consent of the director of transportation and environmental services and approval of this special use permit, of participating in the citywide TMP program or operating its own stand-alone TMP and may be encouraged to partner with a neighboring use.

c)

A tier three use shall create and operate its own stand-alone TMP and may be encouraged to partner with a neighboring TMP.

(2)

Requirements with respect to participation in the city-wide TMP program. Each development that is required to participate in the city-wide TMP program must comply with all conditions of the TMP SUP which at a minimum will include:

a)

Designation of a TMP coordinator whose contact information shall be provided to the city;

b)

Regular payments will be made into the TDM fund in accordance with the TMP assessment as described in section 11-708 herein; and

c)

Access to the property by the city in order to implement TDM measures such as surveys, mailings and hosting events to encourage participation.

(3)

Requirements with respect to partnering.

a)

A tier two or tier three use TMP partnership proposal shall be submitted jointly by both parties.

b)

The proposal shall be reviewed and approved by the director of transportation and environmental services.

c)

If a partnership is approved, each use involved in such a TMP partnership must still independently meet the requirements of its TMP, including independently submitting all required reports.

(A)

Application. A TMP SUP application shall be filed pursuant to section 11-500 of this ordinance and consistent with the administrative guidelines authorized pursuant to section 11-709. The application shall be filed concurrently with the application for approval of a preliminary site plan for the same use as required by section 11-400 of this ordinance.

(B)

Multi-modal transportation scoping requirement. The application shall include a scoping form which shall conform to the guidelines established with the administrative regulations authorized by section 11-709 to determine whether a multi-modal transportation study will be required.

(C)

Multi-modal transportation study requirement. If a multi-modal transportation study is required it shall meet the requirements set forth in the administrative guidelines authorized by section 11-709 herein and at a minimum shall address the following:

(1)

Vehicular transportation.

(2)

Transit service.

(3)

Bicycle and pedestrian facilities.

(4)

Parking study and management plan required if parking reduction requested, unless otherwise exempted in the small area plan or other city council approved plan.

(5)

Proposed transportation management plan.

(D)

Proposed TMP. The applicant shall propose a TMP as part of the application which shall conform to the guidelines established by administrative guidelines authorized by section 11-709, and shall at a minimum include the following:

(1)

Strategies that influence travel behavior by mode, frequency, time, route or trip length in order to reduce single vehicle occupancy trips.

(2)

Specific program components which may include, but are not limited to, a combination of the following: subsidies for transit, carpool, vanpool and shuttles; parking for carpool and vanpool vehicles; carshare or rideshare programs; marketing; teleworking facilities; bicycle facilities.

(A)

In reviewing an application for a special use permit under this section 11-700, the city council shall consider the traffic, transportation and related impacts of the proposed use, the applicable factors listed in section 11-504, and the following characteristics of the proposed use that will determine or affect the extent of those impacts:

(1)

Whether the SUP will encourage the use of travel modes other than single occupancy vehicles and reduce the peak hour traffic impacts associated with new development;

(2)

Whether the SUP will maximize the mobility of pedestrians, transit users, bicyclists and motor vehicles and create an integrated, multimodal transportation system that is accessible and safe for all users;

(3)

Whether the SUP will maintain the viability of its commercial centers, neighborhoods and growth areas by providing adequate transportation infrastructure and services to support future levels of development; and

(4)

Whether the SUP will minimize vehicular impacts associated with new development.

(B)

The city council may approve an application for a special use permit under this section 11-700 if it determines (i) that the applicant's transportation management plan is in accord with the requirements of this section 11-700, (ii) that the transportation management plan, together with any amendments deemed appropriate by council, demonstrates that reasonable and practicable actions will be taken in conjunction with and over the life of the proposed use which will produce a measureable reduction in the traffic and transportation impacts consistent with the mode share target as set forth in the TMP SUP, (iii) and that those actions, strategies and programs will be taken in conjunction and coordination with the city's transportation demand management program.

In approving a TMP SUP under this section 11-700, city council may impose such reasonable conditions and restrictions that it determines are necessary and desirable to ensure that the use will further the intent of this section 11-700, the applicable factors of section 11-504, and the factors listed in sections 11-706(A). Such conditions shall include such operational activities and fee payments designed to achieve successful transportation demand management, including at a minimum the following:

(A)

Coordinator. Each TMP project shall appoint a coordinator responsible for the implementation of the TMP and for coordination with the city.

(B)

Surveys. Each TMP project that is not part of the citywide TMP program shall be responsible for surveying its residents, tenants, and employees on an annual basis to determine the success of the TMP. The TMP project must demonstrate a good faith effort to achieve response rate targets as set forth in the TMP SUP for the project.

(C)

Reviews. Each TMP shall be required to report annually on its activities under the TMP and shall be reviewed by the city to determine its TMP compliance.

(D)

TMP assessment. Each TMP will be required to pay a TMP annual assessment pursuant to section 11-708.

Each TMP shall be required to make a monetary payment at a given rate based on the development type and size. The payment shall be made either into the TMP fund for the individual project or into the city TDM fund, depending on the program participation of the development as defined by section 11-704 herein. The amount of the payment shall be based on a standardized rate as that rate may be modified as provided herein.

(A)

The base rate applicable to all TMPs subject to the assessment as of March 15, 2014 is as follows:

(B)

The base assessment rate will be adjusted on an annual basis on July 1 of each year in accordance with the Consumers Price Index (CPI-U) as reported by the United States Department of Labor, Bureau of Labor Statistics. The base assessment rate in effect at the time of the project's first certificate of occupancy permit (CO) is the applicable rate for the project.

(C)

If any part of the TMP project is within 1,000 feet walking distance of a Metrorail station entrance or a BRT/fixed transit station entrance (station entrance), on a fully operational corridor, a 20 percent reduction from the base assessment rate will be applied. If the TMP project is within 1,500 feet of a station entrance, a 15 percent a reduction from the base assessment rate will be applied.

The director of transportation and environmental services is hereby authorized to promulgate administrative guidelines to supplement this section 11-700 and to facilitate the TMP program. The guidelines shall be consistent with the provisions of this section 11-700. They shall include the city's technical assumptions, specifications, submission requirements, and expectations for applicants and participants in the TMP program and shall be designed to provide guidance to applicants and their professional consultants and to facilitate participation by applicants and coordination between development applicants and staff. The guidelines shall be approved initially by city council and any subsequent changes to the guidelines shall be made part of the annual reporting required under section 11-702(B).

(A)

Compliance required. Each TMP project is required to comply with all conditions of its TMP SUP and with the provisions of this section 11-700 and compliance will be assessed on a regular basis as part of required review of the TMP by the city.

(B)

Failure of a TMP project to comply with its approved TMP shall result in the assessment of civil penalties or revocation of the approved TMP SUP as follows:

(1)

A violation of a TMP SUP condition may result in the following cumulative penalties, which may be accrued in any given 12-month period as follows:

(a)

If the director of transportation and environmental services determines that a violation of the TMP SUP has occurred, he or she may cause a notice of violation to be served on any such person committing or permitting such violation. Such notice shall give 30 days for the violation to be corrected.

(b)

If the 30-day compliance period elapses and the violation of the TMP SUP arising from the same set of operative facts continues, a notice of violation with civil penalty in the amount of five percent of the use's annual financial obligation as provided in the SUP conditions, up to a maximum of $5,000.00, may be assessed. Such notice shall include an additional 30-day compliance period to correct the violation.

(c)

If, after the compliance period in section 11-711(B)(1)(b) elapses, the violation of the TMP SUP arising from the same set of operative facts continues, a notice of violation with a civil penalty in the amount of 10 percent of the use's annual financial obligation as provided in the SUP conditions, up to a maximum of $5,000.00 may be assessed. Such notice shall include an additional 30 day compliance period to correct the violation.

(d)

If, after the compliance periods provided in section 11-711(B)(1)(b) and (c) elapses, the violation of the TMP SUP arising from the same set of operative facts continues, a notice of violation with a civil penalty in the amount of 15 percent of the use's annual financial obligation as provided in the SUP conditions, up to a maximum of $5,000.00 may be assessed.

(2)

If after assessment of three civil penalties, any use continues to fail to comply with a condition of its approved TMP, the use may be required to participate in the citywide TMP program, may be subject to increased review and reporting requirements and may be subject to a staff recommendation for action by the city council revoke the TMP SUP pursuant to section 11-205 of this ordinance.

(A)

Each special use permit issued pursuant to the provisions of this section 11-700 shall expire and become null and void concurrently with the expiration of the site plan approved in connection therewith as provided in section 11-400.

(B)

The enlargement, extension or increase of more than five percent in the floor area expressed in square feet of any use for which a special use permit has been issued under the provisions of this section 11-700 shall require an application for and approval of a new or amended special use permit governing the entire use as enlarged, extended or increase.

(C)

In the case of a mixed-use building or structure for which a special use permit has been issued under this section 11-700, any modification of the mixture of uses which increases or decreases the amount of square feet utilized by the dominant use by more than 20 percent shall require an application for and approval of a new or amended special use permit governing the entire building or structure as modified.

(A)

No individual building or structure, otherwise subject to the provisions of this section 11-700, which is in existence on May 16, 1987, or for which a preliminary site plan approved on or before May 16, 1987, continues in force and effect, shall be deemed a nonconforming or noncomplying use by virtue of any provision of this section 11-700, nor shall any such building or structure be subject to the provisions of this section 11-700.

(B)

Any TMP SUP granted after May 16, 1987 and before March 15, 2014 remains in full force and effect. No individual building or structure, otherwise subject to the provisions of this section 11-700, which is in existence on March 15, 2014, or for which a preliminary site plan approved on or before March 15, 2014, continues in force and effect, shall be deemed a nonconforming or noncomplying use by virtue of any provision of this section 11-700, nor shall any such building or structure be subject to the provisions of this section 11-700.

(C)

Any other provision of law to the contrary notwithstanding, the owner, contract purchaser or lessee, or any authorized agent of such party in interest, of any individual building or structure or project, complex or development which is or becomes a lawful nonconforming or noncomplying use under the provisions of this section 11-700, may file an application for the issuance of a special use permit under the provisions of this section 11-700.

(A)

The director shall administer the provisions of this section 11-700 and shall consult and coordinate with the directors of transportation and environmental services and of the transportation planning division and such other divisions of the city government as may be appropriate.

(B)

The fee for filing and processing a special use permit application shall be according to that prescribed by section 11-104 and such fee shall be in addition to any other fees required under this ordinance.

(A)

For all special use permits approved prior to July 1, 2023, the director of transportation and environmental services is authorized to establish policies and procedures for applications to amend TMP SUPs, to allow TMP SUPs to be governed by the TMP policy adopted by council.

(B)

Approval of an administrative amendment is subject to the following:

(1)

Balance of funds prior to application for amendment.

a)

For TMPs making payments to the city, any unpaid balance must be paid to the city.

b)

For TMPs that are managed by the payor, all funds under pay or management must be paid to the city.

(2)

Determination of payment period.

a)

Single-phase development. For developments that are approved under a single final site plan, the 30-year period commences on the date of the issuance of the first certificate of occupancy or the approval of the TMP SUP, whichever is later.

b)

Multi-phase development. For phased developments that are approved through multiple final site plans, the 30-year period is assessed for each phase and commences on the date of the issuance of the first certificate of occupancy for that phase.

(3)

Credits.

a)

Credits will be assessed as of the date of the application for the amendment.

b)

TMP SUPs approved prior to July 1, 2023 are not eligible for credits for capital improvements that were constructed prior to July 1, 2023.

(4)

Shuttles.

(a)

Shuttle service required under TMP SUPs may cease after review and approval of information required in the application, pursuant to the TMP policy.

(Ord. No. 3923, § 8, 4-12-97; Ord. No. 4864, § 1, 3-15-14; Ord. No. 4910, § 6, 11-15-14; Ord. No. 5497, §§ 1, 2, 6-17-23)

The city council may by ordinance supplement, change, modify or repeal any provision of this ordinance or of the boundaries of the zones established by the official zoning map. Such action by the city council shall constitute a zoning amendment. A proposal to supplement, change, modify or repeal the provisions of the text of this ordinance shall be referred to as a text amendment. A proposal to change the boundaries established by the official zoning map shall be referred to as a map amendment.

An amendment may be initiated by:

(A)

The city council on its own motion;

(B)

The planning commission on its own motion; or

(C)

If the amendment is a map amendment, an applicant who has a legal interest in the property, or is a duly authorized representative or exhibits the consent of those with a legal interest in the property.

An application for a map amendment shall be filed with the director, on such forms as the director may prescribe, who may require such information to be submitted as he determines is necessary for adequate review. At a minimum, the application shall contain the following information:

(A)

A statement identifying the applicant, who shall be the owner, contract purchaser, lessee or other party having a legal interest in the subject property. It shall include a clear and concise statement identifying the applicant and, if different, the owner of the property, including the name and address of each person or entity owning an interest in the applicant or owner and the extent of such ownership interest unless any of such entities is a corporation or a partnership, in which case only those persons owning an interest in excess of three percent in such corporation or partnership need be identified by name, address and extent of interest. For purposes of this section 11-803(A), the term ownership interest shall include any legal or equitable interest held at the time of the application in the real property which is the subject of the application.

(B)

The street address (or common description) and legal description of the property.

(C)

The zoning classification and present use of the subject property.

(D)

The zone to which the applicant seeks reclassification.

(E)

The land use designation of the property contained in the master plan.

(F)

A statement as to how and why the proposed zone classification is consistent with the master plan as applied to the property or, in the event of inconsistency, whether an amendment to the master plan has been proposed.

(G)

A map showing all property within 300 feet of the perimeter of the property which is the subject of the application, indicating the zoning and existing uses of such land.

(H)

A map showing the actual dimensions of the subject property according to the recorded plat of such property, including contour lines, all significant vegetation and other significant natural environmental features on the property.

(I)

A map showing the use, height, location and ground area of all present and, if known, proposed buildings and structures.

(J)

A statement explaining how the proposed property will be served adequately by essential public facilities and services such as highways, streets, parking spaces, police and fire protection, drainage structures, refuse disposal, water and sewers and schools.

(K)

A statement, if applicable, that the application is one for conditional zoning pursuant to section 11-804 and identifying all proffered conditions that are to be considered part of the application.

(L)

The fee prescribed pursuant to section 11-104.

As part of an application for a map amendment a property owner may proffer in writing the provision of reasonable conditions to apply and be part of the rezoning sought to be approved by said application. Proffered conditions shall include written statements, development plans, profiles, elevations, and/or other demonstrative materials and shall be subject to the following procedures and regulations:

(A)

Once conditions to be proffered are signed and made available and the public hearing before city council has commenced, no change or modification to any condition shall be made and no additional conditions shall be proffered at that public hearing. If modified or additional conditions are proposed, a second public hearing before city council shall be held before the application and the modified or additional conditions can be approved. Such application may also be the subject of a second public hearing before the planning commission.

(B)

If the map amendment is approved subject to the conditions proffered by the applicant, then the property in question shall be appropriately annotated on the official zoning map and all other land records referencing the conditions as adopted.

(C)

Such proffered conditions shall become a part of the zoning regulations applicable to the property in question, unless changed by a subsequent map amendment which is not part of the comprehensive implementation of a new or substantially revised zoning ordinance, and such conditions shall be in addition to the specific regulations set forth in this ordinance for the zone in question.

(D)

Upon approval, any site plan, subdivision plat or development plan thereafter submitted for the development of the property in question shall be in substantial conformance with all proffered conditions and no development shall be approved by any city official in the absence of said substantial conformance. Failure to meet any proffered condition accepted by city council as part of an amendment to the zoning ordinance shall constitute cause to deny the issuance of any required site plan or use, occupancy or building permit, or to revoke same after issuance.

(E)

For the purpose of this section 11-804, substantial conformance shall mean that conformance which leaves a reasonable margin for adjustment due to final engineering data but conforms with the general nature of the development, the specific uses, and the layout and design depicted by the plans, profiles, elevations, and other demonstrative materials presented by the applicant.

(F)

The director shall be vested with all necessary authority on behalf of city council to administer and enforce proffered conditions. Such authority shall include the ability to order, in writing, the remedy of any noncompliance with a proffered condition and the ability to bring legal action to insure compliance including injunction, abatement, or other appropriate action or proceedings as provided for in section 11-200 of this ordinance.

(G)

A guarantee, satisfactory to city council, may be required in an amount sufficient for and conditioned upon the construction of any physical improvements required by the proffered conditions, or a contract for the construction of such improvements and the contractor's guarantee, in like amount and so conditioned, which guarantee may be reduced or released by city council or its agent upon the submission of satisfactory evidence that the construction of such improvements has been completed in whole or in part.

(H)

Any person aggrieved by a decision of the director regarding any proffered condition may appeal such decision to city council. Such appeal shall be filed within 30 days from the date of the decision appealed by filing a notice of appeal with the city clerk. Such notice shall be a written statement specifying the grounds on which the person is aggrieved and the basis for the appeal.

(A)

Staff review and report. The director shall review an application to determine if its contents are adequate for appropriate review and shall cause an application or motion to be reviewed by those staff members and departments the director determines to be necessary or desirable regarding the merits of the proposal. He shall prepare a written staff report which includes staff findings and recommendations with regard to the proposal. If the director does not agree with a recommendation prepared by another department, that recommendation shall be set down separately and the reasons for the director's disagreement shall be included in the report.

(B)

Docketing. When the director determines that the application is complete, he shall schedule the matter for public hearing before the planning commission and shall confer with the city manager who shall schedule the matter for public hearing before the city council. The first public hearing on the matter shall be scheduled to occur no later than 90 days from the time the application is determined to be complete unless the applicant waives the time limitation or the city council allows for additional time.

(C)

Withdrawal of applications. No application for map amendment may be withdrawn by an applicant after it has been advertised for public hearing before the city council unless the city council consents to such withdrawal after considering a written request therefor filed with the city clerk no later than noon on the last working day preceding the council's first consideration of the matter.

(D)

Reconsideration of application. The subject matter of an application for a map amendment which has been denied by the city council shall not be considered thereafter by the planning commission or the city council for a period of one year unless the new application differs in a material respect from the application which was denied, in which case it may be considered after a period of six months.

(A)

Action by planning commission.

(1)

Recommendation on proposed amendment. The planning commission shall hold a public hearing on the proposed text amendment at which time it shall vote on the matter and recommend that the city council approve the matter, disapprove the matter, or refer the matter back to the planning commission for further study. The planning commission may defer its decision upon a recorded vote of a majority of the members of the commission that good cause exists for such deferral. Such vote and the reasons therefor shall be sent to city council prior to city council's public hearing on the matter.

(2)

Reasons for recommendation. In recommending the approval or disapproval of a proposed amendment, the planning commission shall state its reasons for such recommendation.

(3)

Action on referred back item. If the city council refers a proposed text amendment back to the planning commission for further study, the planning commission shall hold a duly noticed public hearing on the matter, shall act on the matter by approving or disapproving the motion or by requesting that the council refer it back for further study, and shall submit its reviewed recommendation to city council.

(B)

Action by city council.

(1)

Action on proposed text amendment. The city council shall hold a public hearing on the proposed text amendment and shall act on the matter by approving or disapproving the recommendation of the planning commission or by referring the matter back to the planning commission for further study. If the planning commission recommends disapproval of a text amendment, city council may not approve it except by an affirmative vote of three-fourths of the members of the city council.

(2)

Action on referred back matter. After a text amendment has been referred back to the planning commission for further study, the city council shall hold a duly noticed public hearing, consider the application along with the planning commission's reviewed recommendation and act on the matter by either approving it, disapproving it or referring the matter back to the commission for further study again. If the planning commission votes to disapprove the proposed amendment by a two-thirds vote of its members, the city council may not approve it except by an affirmative vote of three-fourths of its members.

(3)

Implementing ordinance. If a text amendment is approved by city council, an ordinance implementing council's approval will be prepared and submitted to city council for its consideration.

(A)

Action by planning commission.

(1)

Recommendation on proposed map amendment. The planning commission shall hold a public hearing on the proposed map amendment at which time it shall vote on the matter and recommend that the city council approve the matter, disapprove the matter, or refer the matter back to the planning commission for further study. The planning commission may defer its vote for a period not to exceed 90 days upon a recorded vote of a majority of the members of the commission that good cause exists for such deferral. Such vote and the reasons therefor shall be sent to city council prior to city council's public hearing on the matter.

(2)

Reasons for recommendation. In recommending the approval or rejection of a proposed map amendment, the planning commission shall state its reasons for such recommendation.

(3)

Action on referred back item. If the city council refers a proposed map amendment back to the planning commission for further study, the planning commission shall hold a public hearing on the matter, shall act on the matter within 25 days of the date it was referred by either approving or disapproving the matter and shall submit its reviewed recommendation to city council.

(B)

Action by city council.

(1)

Action on map amendment. The city council shall hold a public hearing on a proposed map amendment and shall act on the matter by approving or disapproving the recommendation of the planning commission or by referring the matter back to the planning commission for further study. Except as provided in section 11-807(B)(2) below, if the planning commission recommends disapproval of a map amendment, city council may not approve it except by an affirmative vote of three-fourths of the members of the city council.

(2)

Action on referred back matter. After a proposed map amendment has been referred back to the planning commission for further study, the city council shall hold a duly noticed public hearing, shall consider the proposed map amendment along with the planning commission's reviewed recommendation and shall act on the matter within 45 days of the date it was referred to the planning commission by either approving or disapproving it. If good cause exists for an extension, city council may extend the 45 day time limit for an additional 45 days. If the planning commission votes to disapprove the referred back map amendment by a two-thirds vote of its members, city council may not approve it except by an affirmative vote of three-fourths of its members. If the planning commission fails to act within 25 days of the referral or to recommend denial by a two-thirds vote, the city council may approve the proposed amendment by a simple majority.

(3)

Implementing ordinance. If a map amendment is approved by city council, an ordinance implementing council's approval will be prepared and submitted to city council for its consideration within 75 days of the approval.

(C)

Revision of proposed map amendment.

(1)

The city council may adopt a map amendment which revises the boundaries of the land proposed for amendment or which changes the existing zone classification to a more or less restrictive one than the one originally proposed. If the map amendment to be adopted involves any land area not shown in the original proposal or imposes a less restrictive zone for the property than that originally proposed, public hearingson the revised proposal shall be held before the planning commission and city council and notice of such hearings shall be given by the city as though it were a new item.

(2)

If the original proposal was brought by application, then city council may only approve the adoption of a more restrictive zone change if the following conditions have been met:

(a)

The planning commission has recommended in favor of the more restrictive zone change at a public hearing;

(b)

The applicant who proposed the original map amendment has agreed to the change at or before the planning commission public hearing on the revised zone amendment proposal; and

(c)

Notice pursuant to section 11-300 is given prior to the city council's public hearing on the more restrictive zone change.

(A)

Who may protest. A protest shall be signed by the owners of at least 20 percent of:

(1)

The land proposed to be rezoned by the map amendment; or

(2)

All land within 300 feet of the boundaries of the land proposed to be changed by the map amendment.

(B)

Deadline for protest. A protest must be filed with the city clerk no later than noon on the last working day before the day on which city council conducts its first public hearing on the proposed amendment.

(C)

Calculation of ownership. The director shall verify that those filing are legal property owners and that there are sufficient legal property owners signing to constitute the required 20 percent, subject to the following:

(1)

Streets, alleys and land dedicated to public use or owned by the city, state or federal government shall not be included in computing the areas of ownership required.

(2)

If land included in the computation is owned by a condominium unit owners association then the square footage of the land shall be divided evenly by the number of units in the condominium unit owners association and each owner of a unit shall be entitled to sign for his or her allocated portion of the land.

(D)

Effect of protest. If a protest to a proposed map amendment is filed, the city council may not approve the proposed amendment except by an affirmative vote of three-fourths of its members.

(E)

Limitations.

(1)

Once a protest has been filed, no changes by way of addition, substitution, amendment or withdrawal may be made to the protest after the deadline provided for the filing of a protest in section 11-808(B).

(2)

A protest against a less restrictive change is not effective against a more restrictive change but a new protest may be filed against the more restrictive change and this paragraph does not prevent the filing of a protest against both a less and more restrictive change.

(3)

The provisions of this section 11-808 shall not apply to city owned property or be effective in the case of a map amendment which is part of a comprehensive implementation of a new or substantially revised zoning ordinance.

Notwithstanding any of the procedural requirements set forth in this section 11-800 or by other law, ordinances adopting a text or map amendment may be enacted under the emergency ordinance provisions of the city charter without compliance with such procedural requirements.

(Ord. No. 4798, § 1, 4-13-13; Ord. No. 4849, § 1, 1-25-14; Ord. No. 5027, § 2, 6-18-16; Ord. No. 5300, § 14, 10-17-20)

The city council may by ordinance supplement, change, modify or repeal any provision of the city's consolidated master plan, including any maps, charts, small area plan or other material that comprises the master plan.

A master plan amendment may be initiated by:

(A)

The city council on its own motion;

(B)

The planning commission on its own motion; or

(C)

If the amendment is a map amendment, an applicant who has a legal interest in the property, or is a duly authorized representative or exhibits the consent of those with a legal interest in the property.

An application for a map amendment shall be filed with the director, on such forms as the director may prescribe, who may require such information to be submitted as he determines is necessary for adequate review. At a minimum, the application shall contain the following information:

(A)

A statement identifying the applicant, who shall be the owner, contract purchaser, lessee or other party having a legal interest in the subject property. It shall include a clear and concise statement identifying the applicant and, if different, the owner of the property, including the name and address of each person or entity owning an interest in the applicant or owner and the extent of such ownership interest unless any of such entities is a corporation or a partnership, in which case only those persons owning an interest in excess of three percent in such corporation or partnership need be identified by name, address and extent of interest. For purposes of this section 11-903, the term ownership interest shall include any legal or equitable interest held at the time of the application in the real property which is the subject of the application.

(B)

The street address (or common description), legal description, tax map and parcel number for the property.

(C)

The present land use designation and recommended zoning for the subject property in the master plan.

(D)

The land use designation and recommended zoning to which the applicant seeks reclassification.

(E)

A statement as to how and why the proposed amendment to the master plan is desirable, beneficial to surrounding properties, in character with the applicable small area plan and consistent with city policy.

(F)

A map showing all property within 300 feet of the perimeter of the property which is the subject of the application, indicating the land use designation, zoning and existing uses of such land.

(G)

A map showing the actual dimensions of the subject property according to the recorded plat of such property, including contour lines, all significant vegetation and other significant natural environmental features on the property.

(H)

A map showing the use, height, location and ground area of all present and, if known, proposed buildings and structures.

(I)

A statement explaining how the proposed property will be served adequately by essential public facilities and services such as highways, streets, parking spaces, police and fire protection, drainage structures, refuse disposal, water and sewers and schools.

(J)

If the map amendment is proposed in order to effect a zoning amendment, an application for zoning amendment or, at a minimum, a statement indicating the zoning amendment anticipated for the property.

(K)

The fee prescribed pursuant to section 11-104.

(A)

Staff review and report. The director shall review an application to determine if its contents are adequate for appropriate review and shall cause an application or motion to be reviewed by those staff members and departments the director determines to be necessary or desirable regarding the merits of the proposal. He shall prepare a written staff report which includes staff findings and its recommendations with regard to the proposal. If the director does not agree with a recommendation prepared by another department, that recommendation shall be set down separately and the reasons for the director's disagreement shall be included in the report.

(B)

Docketing. At the time the director determines that the application is complete, he shall schedule the matter for public hearing before the planning commission and shall confer with the city manager who shall schedule the matter for public hearing before the city council. The first public hearing on the matter shall be scheduled to occur no later than 90 days from the time the application is determined to be complete unless the applicant waives the time limitation or the city council allows for additional time.

(C)

Withdrawal of applications. No application for map amendment may be withdrawn by an applicant after it has been advertised for public hearing before the city council unless the city council consents to such withdrawal after considering a written request therefor filed with the city clerk no later than noon on the last working day preceding the council's first consideration of the matter.

(D)

Reconsideration of application. The subject matter of an application for a map amendment which has been denied by the city council shall not be considered thereafter by the planning commission or the city council for a period of one year unless the new application differs in a material respect from the application which was denied, in which case it may be considered after a period of six months.

(A)

Planning commission. The planning commission shall hold a public hearing on the proposed amendment after which it may by resolution adopt the amendment by a vote of not less than a majority of its entire membership. The resolution and amendment shall then be forwarded to city council for its consideration.

(B)

City council action. The city council shall hold a public hearing on a proposed amendment and shall act on the matter by approving, disapproving, or approving it with modifications. In the case of disapproval, the council shall return the proposal to the planning commission for its reconsideration.

(C)

Implementing ordinance. If a master plan amendment is approved by city council, an ordinance implementing council's approval will be prepared and submitted to city council for its consideration.

(Ord. No. 5027, § 2, 6-18-16)

The board of zoning appeals is established to perform those duties set forth in section 9.18 of the city charter and in this Division C of Article XI.

Editor's note—See City Charter § 9.14 through § 9.21 and Code of Virginia § 15.2-2308 through § 15.2-2314.

The board of zoning appeals shall consist of seven members who are qualified voters and live in the City of Alexandria but who hold no office of profit under the city government. Members shall be appointed by the city council for four year terms and vacancies shall be filled by the city council for the unexpired portion of any term. Members shall serve without compensation, but may receive reimbursement for travel and expenses incurred by attendance at conventions, meetings and such other travel as may be in the best interest of the city and the performance of the duties and activities of the board of zoning appeals. A member may be removed by the city council for neglect of duty or malfeasance in office, upon written charges and after a public hearing.

Editor's note—See City Charter § 9.14.

The board shall elect one of its members as chairman. The chairman shall preside at all meetings of the board and in his absence a member designated by the board shall act as chairman and shall preside. The board shall appoint a secretary and the city manager shall appoint such other employees as may be needed for the conduct of the work of the board. Within the limits of funds appropriated by the city council, the board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services.

Editor's note—See City Charter § 9.15 related to first three sentences and see Code of Virginia § 15.2-2308(D) related to last sentence.

Meetings of the board of zoning appeals shall be held at the call of the chairman and at such other times as the board of zoning appeals may determine. For the conduct of any hearing, a quorum shall be not less than a majority of all the members of the board and the board shall offer an equal amount of time in a hearing on the case to the applicant, appellant or other person aggrieved under section 11-1008, and the staff. The board may make, alter and rescind rules and forms for its procedures, consistent with city ordinances and general laws of the Commonwealth of Virginia. The board shall keep minutes of its proceedings showing the vote of each member on each question, or if absent or not voting, indicating such fact. The board shall keep records of its examinations and other official actions. All such minutes and records shall be filed in the office of the board of zoning appeals and shall be a public record.

Editor's note—See City Charter § 9.16 related to the first sentence, see Code of Virginia § 15.2-2308(C) related to the second and third sentences, and see City Charter §§ 9.16 and 9.19 related to the fourth through sixth sentences.

The board of zoning appeals shall have the following powers and duties:

(A)

To hear and decide appeals as provided for in section 11-1200 from any order, requirement, decision, or determination made by an administrative officer in the administration or enforcement of this ordinance.

(B)

To authorize upon appeal in specific cases such variance from the terms of this ordinance as is provided for in section 11-1100.

(C)

To hear and decide applications for and revoke special exceptions as provided for in section 11-1300.

(D)

To permit, when reasonably necessary in the public interest, any agency of the city, state or United States the use of land or the construction or use of buildings or structures in any zone in which they are prohibited by the ordinance, provided such construction or use shall adequately safeguard the health, safety and welfare of the occupants and of adjoining and surrounding property, and shall not unreasonably impair an adequate supply of light and air to adjacent property, increase congestion in streets, or increase public danger from fire or otherwise affect public safety. Notice of the public hearing shall be provided in accordance with section 11-300.

(E)

To permit the following exceptions to the zone regulations and restrictions, provided that by their design, construction and operation, such exceptions shall safeguard the health, safety and welfare of the occupants of the adjoining and surrounding properties, shall not unreasonably impair an adequate supply of light and air, shall not increase public danger from fire or otherwise unreasonably affect public safety, and shall not diminish or impair the established property values in surrounding areas:

(1)

The extension of a zone where the boundary line of a zone divides a lot in single ownership as of June 24, 1992. The zone extension case must be recorded with the deed in the City's Land Records and denoted on the zoning map for land so affected and such land shall be treated as if it were in the new zone.

(2)

The reconstruction of a structure containing a nonconforming use which has been damaged by fire or other casualty, or act of God or the public enemy, if it has been damaged to the extent of more than 60 percent of fair market value as established by the opinion of three disinterested appraisers appointed by the city council, and if the board finds some compelling public necessity for a continuance of the use and such a continuance is not primarily to continue a monopoly.

Notice of the public hearing shall be provided in accordance with section 11-300.

(F)

To make, alter and rescind rules and forms for its procedures, and to prescribe procedures for the conduct of public hearings that it is required to hold, consistent with the ordinances and charter of the city and the general laws of the Commonwealth.

(G)

No provision of this Division C of Article XI shall be construed as granting the board of zoning appeals the power to rezone property or to base board decisions on the merits of the purpose and intent of ordinances adopted by city council.

Editor's note—See Code of Virginia § 15.2-2309 related to subsections (A), (B), (C), and (G) and see City Charter § 9.18 related to subsections (D) through (F) generally and see Code of Virginia § 15.2-2309 related to notice.

All provisions of this ordinance relating to the board of zoning appeals shall be strictly construed. The board, as a body of limited jurisdiction, shall act in full conformity with all provisions and definitions in this ordinance and in strict compliance with all limitations contained therein.

Editor's note—See City Charter § 9.14 through § 9.21.

The board shall report to the city council annually summarizing all appeals and applications made to it since its last previous report and summarizing its decisions on such appeals and applications. Such report shall include the board's observations and recommendations deemed advisable in order to assure full conformity with the requirements and limitations of this division C of Article XI pertaining to the jurisdiction and functions of the board or to amend the ordinance relating thereto. At the same time that each such report is filed with the council, copies thereof shall also be filed with the director, the planning commission, and the city attorney.

Editor's note—See Code of Virginia § 15.2-2308.

All final decisions of the board shall be subject to judicial review in the following manner.

(A)

Any person, firm or corporation, jointly or severally aggrieved or in fact affected by any final decision of the board, or any officer, department, board or agency of the city government charged with the enforcement of any order, requirement or decision of the board, may appeal from such decision by filing a petition that shall be styled "In Re: [date] Decision of the Board of ZoningAppeals of the City of Alexandria" in the circuit court of the city specifying the alleged illegality of the action of the board within 30 days after the date of the decision of the board.

(B)

The circuit court shall review the record, documents and actions taken by the board and may receive evidence. The court may reverse or modify the decision reviewed, in whole or in part, when it is satisfied that the decision of the board is contrary to law or that its decision is arbitrary and constitutes an abuse of discretion.

(C)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board and shall prescribe therein the time within which a return thereto must be made and served upon the secretary of the board or, if no secretary exists, the chair of the board, which shall not be less than ten days and may be extended by the court. Once the writ of certiorari is served, the board of zoning appeals shall have 21 days or as ordered by the court to respond. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

(D)

Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required by this section. The council, the landowner, and the applicant before the board shall be necessary parties to the proceedings in the circuit court. The court may permit intervention by any other person or persons jointly or severally aggrieved by any decision of the board.

(E)

The board shall not be required to return the original papers acted upon by it but it shall be sufficient to return certified or sworn copies thereof or of the portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(F)

In the case of an appeal from the board to the circuit court of a decision of the board, any party may introduce evidence in the proceedings in the court in accordance with the Rules of Evidence of the Supreme Court of Virginia.

(G)

Costs shall not be allowed against the city or council, unless it shall appear to the court that the city or council acted in bad faith or with malice. In the event the decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making the return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the locality may request that the court hear the matter on the question of whether the appeal was frivolous.

Editor's note—See City Charter § 9.20 and Code of Virginia § 15.2-2314 related to subsection (A), see City Charter § 9.21 related to subsection (B), and Code of Virginia § 15.2-2314 related to subsections (C) through (G).

Any decision of the board shall be null and void and of no effect if the applicant to the board or his successor has not commenced and diligently and substantially pursued construction or operations allowable by virtue of such decision within one year from the date of the decision and thereafter diligently pursued its completion. In cases where there is an appeal from the board to the courts, the one-year period of time shall run from the date of a final decision by the court.

Editor's note—See City Charter § 9.14 through § 9.21 and Code of Virginia § 15.2-2308 through § 15.2-2314.

(A)

The non-legal staff of the city may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. The applicant, landowner or his agent or attorney may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. If any ex parte discussion of facts or law in fact occurs, the party engaging in such communication shall inform the other party as soon as practicable and advise the other party of the substance of such communication. For purposes of this section, regardless of whether all parties participate, ex parte communications shall not include (i) discussions as part of a public meeting or (ii) discussions prior to a public meeting to which staff of the city, the applicant, landowner or his agent or attorney are all invited.

(B)

Any materials relating to a particular case, including a staff recommendation or report furnished to a member of the board, shall be made available without cost to such applicant, appellant or other person aggrieved under section 11-1008, as soon as practicable thereafter, but in no event more than three business days of providing such materials to a member of the board. If the applicant, appellant or other person aggrieved under section 11-1008 requests additional documents or materials be provided by the city other than those materials provided to the board, such request shall be made pursuant to Code of Virginia § 2.2-3704. Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to Code of Virginia subsection F of § 2.2-3707.

(C)

For the purposes of this section, "non-legal staff of the city" means any staff who is not in the office of the attorney for the city, or for the board, or who is appointed by special law. Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff of any attorney where such communication is protected by the attorney-client privilege or other similar privilege or protection of confidentiality.

(D)

This section shall not apply to cases where an application for a special exception has been filed.

Editor's note—See Code of Virginia § 15.2-2308.1.

(Ord. No. 4910, § 6, 11-15-14; Ord. No. 5067, § 1, 6-24-17; Ord. No. 5300, § 15, 10-17-20; Ord. No. 5374, § 28, 10-16-21)

Upon appeal, the board of zoning appeals shall exercise the jurisdiction and authority to grant a variance from the literal terms of this ordinance in accordance with the procedures, standards and limitations contained in this section 11-1100.

Editor's note—See other editor's notes in Section 11-1100.

(A)

Application for variance. Any property owner, tenant, government official, department, board or bureau, may file an application for variance in regard to such property with the director. The application shall contain the following information and such additional information as the board of zoning appeals may, by rule, require:

(1)

Ten copies of a plot plan drawn to scale clearly showing the requested variance(s), the property involved, existing and proposed buildings or additions, property lines, and the location of and distance to adjacent buildings from the proposed building or addition.

(2)

The particular provisions or requirements of this ordinance which prevent the proposed construction on, or proposed use of, the property.

(3)

The existing zoning classification of the property.

(4)

The special conditions, circumstances or characteristics of the land, building or structure that prevent the use of the land in compliance with the requirements of this ordinance and a statement as to whether such conditions existed at the time the current owner acquired the property.

(5)

The particular characteristics or conditions which distinguish the land from other land in the same zone.

(6)

The particular hardship which would result if the specified provisions or requirements were to be applied to the subject property.

(7)

The extent to which it would be necessary to vary the requirements of this ordinance in order to permit the proposed construction on, or use of, the property.

(8)

An explanation of how the requested variance conforms to each of the standards set out in section 11-1103 below.

(9)

The identity of all persons or entities who have a legal or equitable interest in the property and a description of the nature of that interest.

(B)

Staff review and report. The director shall review the application to determine that it contains the required information; shall review the merits of the application and perform research as necessary to determine whether a variance under the terms of this section 11-1100 should be granted; shall prepare a staff report indicating its analysis and findings with respect to the standards in section 11-1103 and regarding the effect and impact on the neighborhood if the variance were to be granted; and shall forward its report to the board of zoning appeals. The director shall also transmit a copy of the application to the planning commission which may send a recommendation to the board or appear as a party at the hearing.

(C)

Docketing and notice. At the time the director determines that the application is complete, he shall docket the matter for public hearing before the board of zoning appeals for a date to occur no later than 30 working days from the date of such determination and docketing.

(D)

Public hearing by board of zoning appeals. After a duly noticed public hearing in accordance with section 11-300, on the application for variance, the board shall either approve, deny or approve with conditions the application for a variance. Its decision shall be supported by findings of fact and conclusions with respect to the standards of section 11-1103. The concurring affirmative vote of four members shall be necessary to decide in favor of the applicant.

(E)

Withdrawal of application. An application for variance may not be withdrawn by the applicant after it has been docketed for public hearing without the consent of the board.

Editor's note—See Code of Virginia §§ 15.2-2309 and 15.2-2310 and see City Charter § 9.19.

The board of zoning appeals shall not vary the regulations of this ordinance as authorized above unless it finds that:

(A)

It meets the definition of a variance as defined in section 2-201.1;

(B)

The strict application of the terms of the ordinance would unreasonably restrict the utilization of the property, that the granting of the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance, or alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability;

(C)

The property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance;

(D)

The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area;

(E)

The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance;

(F)

The granting of the variance does not result in a use that is not otherwise permitted on such property or a change in the zoning classification of the property; and

(G)

The relief or remedy sought by the variance application is not available through a special exception process that is authorized in the ordinance or the process for modification of a zoning ordinance at the time of the filing of the variance application.

Editor's note—See Code of Virginia § 15.2-2309.

The board may impose such conditions and restrictions upon the premises benefitted by a variance as may be necessary to reduce, minimize, or mitigate the effect of such variance upon other property in the neighborhood, and better to carry out the general intent of the ordinance. The board may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. In addition, a variance shall specify whether it is granted generally for all potential uses or whether its effect is limited to specific uses of the property. Any variance granted to provide a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability may expire when the person benefited by it is no longer in need of the modification to such property or improvements provided by the variance, subject to the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.), as applicable. If a request for a reasonable modification is made to a locality and is appropriate under the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.), as applicable, such request shall be granted by the locality unless a variance from the board of zoning appeals under this section is required in order for such request to be granted. Failure to comply with any such conditions and restrictions shall constitute a violation of this ordinance. Violations of this ordinance may be enforced and penalized in accordance with section 11-200.

Editor's note—See Code of Virginia § 15.2-2309 related to the second sentence and see City Charter § 9.18 related to the remainder.

The applicant for a variance shall bear the burden of producing evidence to prove by a preponderance of the evidence that the requested variance satisfies the standards set out in section 11-1103.

Editor's note—See Code of Virginia § 15.2-2309.

If an application for a variance is denied, the board of zoning appeals shall not consider an application for the same variance on the same site again for one year unless the new application differs in a substantial and material way from the old one, in which case it may be reconsidered after six months.

Editor's note—See Code of Virginia § 15.2-2310.

The property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state law and local ordinance; however, the structure permitted by the variance may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance is required under the ordinance. Where the expansion is proposed within an area of the site or part of the structure for which a variance is required, the approval of an additional variance shall be required.

Editor's note—See Code of Virginia § 15.2-2309.

(Ord. No. 4711, § 1, 3-12-11; Ord. No. 5067, § 1, 6-24-17; Ord. No. 5300, §§ 16, 17, 10-17-20)

To hear and decide appeals as provided for in section 11-1200 from any order, requirement, decision, or determination made by an administrative officer in the administration or enforcement of this ordinance. For purposes of this section, determination means any order, requirement, decision or determination made by the director.

Editor's note—See Code of Virginia § 15.2-2309.

In exercising the authority herein granted the board may, in conformity with the provisions of this ordinance, reverse or affirm wholly or partly or may modify the order, requirement, decision, or determination appealed from.

Editor's note—See City Charter § 9.19.

Appeals to the board may be taken by any person aggrieved or by an officer, department, board, commission or agency of the city affected by a decision of the director. Appeals shall be taken within such reasonable time as shall be prescribed by the board by general rule by filing with the director and with the board a notice of appeal specifying the grounds of the appeal. The director shall forthwith forward to the board all the papers constituting the record upon which the action appealed from was taken. The board may prescribe a fee to be paid to the city whenever an appeal is taken. Notice of the public hearing shall be provided in accordance with section 11-300.

Editor's note—See Code of Virginia § 15.2-2309.

A notice of appeal properly filed as herein provided shall stay all proceedings in furtherance of the action appealed from, unless the director certifies to the board after the notice of appeal has been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by a restraining order which may be granted by the board or by a proper court on notice to the director and on due cause shown.

Editor's note—See City Charter § 9.17.

(A)

Within a reasonable time after the notice of appeal has been filed, the board shall hold a public hearing, give public notice thereof as well as due notice to the parties in interest, decide the appeal, and file with the director its written findings of fact and conclusions with respect to the appeal.

(B)

The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(C)

The decision on such appeal shall be based on the board's judgment of whether the director was correct. The determination of the director shall be presumed to be correct. At a hearing on an appeal, the director shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence. The board shall consider any applicable ordinances, laws, and regulations in making its decision.

(D)

In exercising the powers conferred upon it the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination, appealed from, and make such order, requirement, decision or determination as should be made, and to that end shall have all the power of the director.

(E)

If the board's attempt to reach a decision results in a tie vote, the matter may be carried over until the next scheduled meeting at the request of the person filing the appeal.

(F)

The concurring affirmative vote of four members shall be necessary to reverse a decision.

(G)

The director shall serve a copy of the decision on the appellant and upon each other person who was a party of record at the hearing.

Editor's note—See City Charter § 9.17 related to subsection (A), see Code of Virginia § 15.2-2312 related to subsection (B), see Code of Virginia § 15.2-2309 related to subsection (C), see Code of Virginia § 15.2-2312 and City Charter § 9.19 related to subsection (D), see Code of Virginia § 15.2-2311 related to subsection (E), see City Charter § 9.19 related to subsection (F), and see City Charter § 9.19 related to subsection (G).

Where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of the zoning ordinance, by suit filed within fifteen days after the start of construction by a person who had no actual notice of the issuance of the permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the director to the board of zoning appeals.

Editor's note—See Code of Virginia § 15.2-2313.

Any written notice of a zoning violation or a written order of the director shall include a statement informing the recipient that he may have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with section 11-1200 and that the decision shall be final and unappealable if not appealed within 30 days. The zoning violation or written order shall include the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal. The appeal period shall not commence until the statement is given and the written notice of a zoning violation or a written order of the director is sent by registered or certified mail to, or posted at, the last known address or usual place of abode of the property owner or its registered agent, if any. There shall be a rebuttable presumption that the property owner's last known address is that shown on the current real estate tax assessment records, or the address of a registered agent that is shown in the records of the Clerk of the State Corporation Commission.

Editor's note—See Code of Virginia § 15.2-2311.

A decision by the board on an appeal taken pursuant to section 11-1200 shall be binding upon the owner of the property which is the subject of such appeal only if the owner of such property has been provided notice of the zoning violation or written order of the zoning administrator in accordance with section 11-1207. The owner's actual notice of such notice of zoning violation or written order or active participation in the appeal hearing shall waive the owner's right to challenge the validity of the board's decision due to failure of the owner to receive the notice of zoning violation or written order.

Editor's note—[See] Code of Virginia § 15.2-2311.

No civil penalties shall be assessed by a court having jurisdiction during the pendency of the 30-day appeal period.

Editor's note—[See] Code of Virginia § 15.2-2311.

In no event shall a written order, requirement, decision or determination made by the director or other administrative officer be subject to change, modification or reversal by any director or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the director or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the director or other administrative officer or through fraud. The 60-day limitation period shall not apply in any case where, with the concurrence of the attorney for the city, modification is required to correct clerical errors.

Editor's note—See Code of Virginia § 15.2-2311(C).

(Ord. No. 5067, § 1, 6-24-17; Ord. No. 5300, § 18, 10-17-20)

The board of zoning appeals is authorized to review applications for those special exceptions established by this section 11-1300.

Editor's note—See other editor's notes in section 11-1300.

A lot developed with a single-unit, two-unit, townhouse, or multi-unit (up to four units) dwelling may be the subject of a special exception from the following zoning requirements pursuant to this section 11-1300:

(A)

Fences on corner lots provided that nothing in this subsection shall be deemed to authorize the approval of more than one special exception per lot under the provisions of this subsection.

(B)

Yard and setback requirements for enlargement of a dwelling, as follows:

(1)

Yard and setback requirements applicable to the extension or enlargement of a single unit, two-unit, townhouse, or multi-unit (up to four units) dwelling only, within any one noncomplying plane of such dwelling.

(2)

As used in this subsection, the term noncomplying plane means the vertical plane established by a wall, one story or more in height, of a main building which wall:

(a)

Does not comply with the yard or setback requirements of this ordinance,

(b)

Existed prior to the effective date of any change to the yard or setback regulations or restrictions applicable to such wall, and

(c)

Extends for more than 50 percent of the length of the building along the side containing such wall.

(3)

Nothing in this subsection shall be deemed to authorize the extension or enlargement of a dwelling beyond the maximum height or floor area ratio permitted by the zone in which such dwelling is located nor to authorize the approval of more than one special exception per dwelling under the provisions of this subsection.

(C)

Yard and setback requirements for a front porch subject to the following requirements:

(1)

The applicant for a front porch shall demonstrate by clear and convincing evidence that the proposed front porch is compatible with the existing building architecture, neighboring properties and neighborhood character. A front porch shall not extend into required side yards further than the walls that face the side yards of the existing dwelling unless such extension complies with the regulations for the zone in which it is located.

(2)

Nothing in this subsection shall be deemed to authorize the extension or enlargement of a dwelling beyond the height or floor area ratio permitted by the zone in which such dwelling is located, nor to authorize the approval of more than one special exception per dwelling under the provisions of this subsection.

(D)

Maximum height for single-unit, two-unit, and multi-unit dwellings in the R-20, R-12, R-8, R-5, R-2-5, and single and two-unit dwellings in the RA and RB zones not including property located within the Old and Historic Alexandria and Parker-Gray Districts, subject to the following requirements:

(1)

Dwelling shall not exceed the height of the tallest dwelling within the contextual block face plus 20 percent. For the purposes of applying this subsection only, dwelling height shall be measured from average pre-construction grade along the front of the dwelling only;

(2)

Regardless of the height established by (1), above, the maximum height shall not exceed 35 feet.

(3)

Nothing in this subsection shall be deemed to authorize the extension or enlargement of a dwelling beyond the floor area ratio permitted or height to setback ratios required by the zone in which such dwelling is located, nor to authorize the approval of more than one special exception per dwelling under the provisions of this subsection.

(E)

Attached private garages with the vehicle opening facing the primary front yard that do not meet the requirements of section 7-2500 that are located on lots developed with a single-unit, two-unit, or multi-unit dwelling in the R-20, R-12, R-8, R-5, R-2-5, RA and RB zones, not including property located within the Old and Historic Alexandria and Parker-Gray Districts, subject to the following requirements:

(1)

It is located within a block face or contextual block face where at least 50 percent of the developed lots have attached garages with the vehicle opening facing a primary front yard on the same street where the new vehicle opening will face.

(2)

The width of the vehicle opening shall be less than 33 percent of the width of the building facing the front property line.

(3)

The garage is no closer to the front property line than the front building wall facing the primary front yard, unless

(a)

The applicant demonstrates by clear and convincing evidence that locating the garage completely behind the front building wall is not possible due to topography, shape of the lot, placement of the existing dwelling on the lot or other environmental concerns.

(4)

It is in compliance with the required yards established by the zone.

(5)

Nothing in this subsection shall be deemed to authorize the extension or enlargement of a dwelling beyond the height or floor area ratio permitted by the zone in which such dwelling is located, nor to authorize the approval of more than one special exception per lot under the provisions of this subsection.

(F)

Bulk and setback requirements of section 7-203(C) for the expansion, alteration or reconstruction of a detached accessory building subject to the following requirements:

(1)

The accessory building shall be developed with an accessory dwelling.

(2)

No expansion, alteration or reconstruction shall increase the degree of the accessory building's existing noncompliance with regard to section 7-203(C).

(3)

The noncomplying accessory building existed prior to February 20, 2021.

(4)

Nothing in this subsection shall be deemed to authorize the expansion or redevelopment of an accessory building beyond the height or floor area ratio permitted by the zone in which such accessory building is located, nor to authorize the approval of more than one special exception per lot under the provisions of this subsection.

Editor's note— See City Charter § 9.18 and Code of Virginia § 15.2-2309.

(A)

Application. Any property owner, tenant, government official, department, board or bureau, may file an application for a special exception in regard to such property with the director. The application shall contain the following information and such additional information as the board of zoning appeals may, by rule, require:

1.

Ten copies of a plot plan drawn to scale clearly showing the requested special exception(s), the property involved, existing and proposed buildings or additions, property lines, and the location of and distance to adjacent buildings from the proposed building or addition.

2.

The particular provisions or requirements of this ordinance which prevent the proposed construction on, or proposed use of, the property.

3.

The existing zoning classification of the property.

4.

The special conditions, circumstances or characteristics of the land, building or structure that prevent the use of the land in compliance with the requirements of this ordinance and a statement as to whether such conditions existed at the time the current owner acquired the property.

5.

An explanation of how the requested special exception conforms to each of the standards set out in section 11-1304 below.

(B)

Staff review and report. The director shall review the application and determine that it contains the required information; shall review the merits of the application; shall prepare a staff report indicating its findings; and shall forward the report to the board of zoning appeals. The director shall also transmit a copy of the application to the planning commission which may send a recommendation to the board or appear as a party at the hearing.

(C)

Docketing and notice. At the time the director determines that the application is complete, he shall docket the matter for public hearing before the board of zoning appeals for a date to occur no later than 30 working days from the date of such determination.

(D)

Public hearing by board of zoning appeals. The board of zoning appeals shall conduct a public hearing, in accordance with section 11-300, on the application for a special exception and approve, deny or approve the application with conditions. The decision of the board shall state the reasons therefor. The concurring affirmative vote of four members shall be necessary to decide in favor of the applicant.

(E)

Withdrawal of application. An application for a special exception may not be withdrawn by the applicant without the consent of the board after it has been docketed for public hearing.

Editor's note—See Code of Virginia §§ 15.2-2309 and 15.2-2310 and City Charter §§ 9.18 and 9.19.

In order to grant an application for a special exception under this section 11-1300, the board must find that the strict application of the ordinance creates an unreasonable burden on the use and enjoyment of the property which outweighs the material zoning purpose for which the specific provision of the ordinance at issue was designed. In making its determination, the board shall consider and weigh the following issues, as applicable.

(A)

Whether approval of the special exception will be detrimental to the public welfare, to the neighborhood or to adjacent properties.

(B)

Whether approval of the special exception will impair an adequate supply of light or air to adjacent property, or cause or substantially increase traffic congestion or increase the danger of fire or the spread of fire, or endanger the public safety.

(C)

Whether approval of the special exception will alter the essential character of the area or the zone.

(D)

Whether the proposal will be compatible with development in the surrounding neighborhood.

(E)

Whether the proposed development represents the only reasonable means and location on the lot to accommodate the proposed structure given the natural constraints of the lot or the existing development of the lot.

(F)

In the case of fences, whether the size, configuration or other unusual characteristic of the lot requires an exception from the zoning requirements in order to provide a reasonable fenced area without creating significant harm to adjacent properties or the neighborhood.

Editor's note—See City Charter § 9.18.

Conditions and restrictions may be imposed on the premises benefited by a special exception as may be necessary to reduce, minimize, or mitigate the effect of the special exception upon other property in the neighborhood and better to carry out the general intent of the zoning ordinance. A guarantee or a bond may be required of the applicant to ensure that the conditions imposed are being and will be complied with. Failure to comply with any such conditions or restrictions shall constitute a violation of this ordinance and cause to revoke the permit, after notice and hearing is had. Violations of this ordinance may be enforced and penalized in accordance with section 11-200.

Editor's note—See Code of Virginia § 15.2-2309.

The applicant for a special exception shall bear the burden of producing evidence establishing that the requested special exception satisfies the standards set out in section 11-1304.

Editor's note—See City Charter § 9.18(d).

A special exception otherwise available under this section shall not be approved where the same relief was, is or may be available from the planning commission, board of architectural review or city council as part of its review of a site plan or other development application and such relief was either not granted or not sought.

Editor's note—See City Charter § 9.18(d).

If an applicant for a special exception is denied, a subsequent application for the same relief on the same site shall not be considered again for one year unless the new application differs in a substantial and material way from the old one, in which case it may be reconsidered after six months.

Editor's note—See Code of Virginia § 15.2-2310.

The board may revoke a special exception previously granted by the board if the board determines that there has not been compliance with the terms or conditions of the permit. Notice of the public hearing shall be provided in accordance with section 11-300.

Editor's note—See Code of Virginia § 15.2-2309.

(Ord. No. 3901, § 1, 12-14-96; Ord. No. 4226, § 1, 11-17-01; Ord. No. 4483, § 3, 5-12-07; Ord. No. 4556, § 1, 6-24-08; Ord. No. 4653, § 3, 4-17-10; Ord. No. 5067, § 1, 6-24-17; Ord. No. 5151, § 10, 6-23-18; Ord. No. 5206, § 21, 3-16-19; Ord. No. 5234, § 13, 7-9-19; Ord. No. 5300, § 19, 10-17-20; Ord. No. 5328, § 8, 3-13-21; Ord. No. 5374, § 29, 10-16-21; Ord. No. 5447, § 3, 7-5-22; Ord. No. 5515, § 10, 12-16-23; Ord. No. 5580, § 7, 4-26-25)

The board of zoning appeals is authorized to review applications for the extension of a zone boundary line if a zone line divides a lot that was in single ownership on the effective date of the ordinance in accordance procedures, standards and limitations contained in this section 11-1400.

Cross reference— See City Charter § 9.18.

(A)

Application. Any property owner, tenant, government official, department, board or bureau, may file an application for a zone extension in regard to such property with the director. The application shall contain the following information and such additional information as the board of zoning appeals may, by rule, require:

(1)

Site plan or survey to scale clearly showing the location of the property lines and the zone boundary lines, the property involved, existing and proposed buildings or additions.

(B)

Staff review and report. The director shall review the application and determine that it contains the required information; shall review the merits of the application; shall prepare a staff report indicating its findings; and shall forward the report to the board of zoning appeals. The director shall also transmit a copy of the application to the planning commission which may send a recommendation to the board or appear as a party at the hearing.

(C)

Docketing and notice. At the time the director determines that the application is complete, he shall docket the matter for public hearing before the board of zoning appeals for a date to occur no later than 30 working days from the date of such determination.

(D)

Public hearing by board of zoning appeals. The board of zoning appeals shall conduct a public hearing, in accordance with section 11-300, on the application for a zone extension and approve, deny or approve the application with conditions. The decision of the board shall state the reasons therefor. The concurring affirmative vote of four members shall be necessary to decide in favor of the applicant.

(E)

Withdrawal of application. An application for a zone extension may not be withdrawn by the applicant without the consent of the board after it has been docketed for public hearing.

In order to grant an application for a zone extension under this section 11-1400, the board must find that the strict application of the ordinance creates an unreasonable burden on the use and enjoyment of the property which outweighs the material zoning purpose for which the specific provision of the ordinance at issue was designed. In making its determination, the board shall consider and weigh the following issues, as applicable.

(A)

Whether approval of the zone extension will be detrimental to the public welfare, to the neighborhood or to adjacent properties.

(B)

Whether approval of the zone extension will impair an adequate supply of light or air to adjacent property, or cause or substantially increase traffic congestion or increase the danger of fire or the spread of fire, or endanger the public safety.

(C)

Whether approval of the zone extension will alter the essential character of the area.

(D)

Whether the proposed zone extension will diminish or impair the established property values in surrounding areas.

Conditions and restrictions may be imposed on the premises benefited by a zone extension as may be necessary to reduce, minimize, or mitigate the effect of the zone extension upon other property in the neighborhood and better to carry out the general intent of the zoning ordinance. A guarantee or a bond may be required of the applicant to ensure that the conditions imposed are being and will be complied with. Failure to comply with any such conditions or restrictions shall constitute a violation of this ordinance and cause to revoke the zone extension, after notice and hearing is had. Violations of this ordinance may be enforced and penalized in accordance with section 11-200.

The applicant for a zone extension shall bear the burden of producing evidence establishing that the requested zone extension satisfies the standards set out in section 11-1403.

If an applicant for a zone extension is denied, a subsequent application for the same relief on the same site shall not be considered again for one year unless the new application differs in a substantial and material way from the old one, in which case it may be reconsidered after six months.

(Ord. No. 5374, § 30, 10-16-21; Ord. No. 5580, § 7, 4-26-25)

The planning commission is established to perform such duties as are set forth in, and exercised the authority conferred by, chapter 9 of the city charter, this ordinance and other applicable law. In general, the commission shall have such powers as may be necessary to enable it to fulfill its function, promote planning and carry out the purposes of this ordinance.

(A)

The city planning commission shall consist of seven members, who shall be qualified resident voters of the city who hold no office of profit under the city government, appointed by the city council for terms of four years. The city manager shall designate an officer or employee to sit with the commission with the right to discuss and advise but without the right to vote. Vacancies shall be filled by council for the unexpired portion of the term.

(B)

Members of the city planning commission shall serve as such without compensation, but may receive reimbursement for travel and expenses incurred by attendance at conventions, meetings and such other travel as they may perform in the interest of the City of Alexandria in the performance of the duties and activities of the planning commission.

(C)

Any member of the planning commission may be removed from office by the city council after public hearing, of which such member shall receive at least 10 days notice in writing, for inefficiency, neglect of duty or malfeasance in office.

(A)

The commission shall elect a chairman and vice-chairman from among its members, for a term of one year and appoint a secretary. The officers shall be eligible for reelection. The commission shall adopt rules for the transaction of its business, and shall keep a record of its resolutions, transactions, findings and determinations, which record shall be a public record. The commission shall make an annual report to the council concerning its activities.

(B)

The city manager may appoint such employees as the manager may deem necessary for the work of the commission and may enter into contracts with planners, engineers, architects and other consultants for services that the commission may require. All expenditures, exclusive of gifts to the commission, shall not exceed the sums appropriated by the city council therefore.

(C)

All public officials shall, upon request, furnish to the commission within a reasonable time such available information as it may require for its work. The commission, its members, officers and employees in the performance of their duties may enter upon any land in the city and make examinations and surveys and place and maintain necessary monuments and markers thereon, and shall have the right to apply to an appropriate court for the issuance of a warrant for same.

(A)

It shall be the duty of the commission to make and adopt a master plan which, with the accompanying maps, plats, charts, and descriptive matter, shall show the commission's recommendations for the development of the territory covered by the plan.

(B)

The commission may adopt the plan as a whole by single resolution or may by successive resolutions adopt successive parts of the plan, said parts corresponding to major geographical sections or geographical or topographical divisions of the city or with functional subdivisions of the subject matter of the plan. The commission also may adopt any amendment or extension thereof or addition thereto and from time to time, at intervals not exceeding five years, shall prepare and submit to the council such changes in or revisions of said plan as changing conditions may make necessary.

(C)

The commission shall the power to promote public interest in and understanding of the plan and to that end may publish and distribute copies of the plan or any report relating thereto, and may employ such other means of publicity and education as it may determine.

(D)

It shall be the duty of the planning commission to prepare and submit to the council from time to time, at intervals not exceeding two years, such changes in or revisions of this ordinance as changing conditions may make necessary.

(A)

No street, square, park or other public way, ground or open space, or public building or structure shall be authorized or constructed in the city unless and until the general location, character and extent thereof has been submitted to and approved by the commission as being substantially in accord with the master plan.

(B)

No widening, extension, narrowing, enlargement, vacation or change in the use of any street, square, park and other public way, ground or open space place within the city, and no sale of any land held by the city, shall be authorized to take place unless and until such transaction has been submitted to and approved by the commission as being substantially in accord with the master plan.

(C)

No public utility, whether publicly or privately owned, shall be authorized or constructed in the city unless and until its general location, but not its character and extent, has been submitted to and approved by the commission as being substantially in accord with the master plan.

(D)

In case of disapproval by the commission in any of the instances enumerated above in this section, the commission shall communicate its reasons to the city council which shall not have the power to overrule such action except by a recorded affirmative vote of three-fourths of the members of the council.

(E)

In any of the instances enumerated above in this section, the failure of the commission to act within 60 days from the date of the official submission to it shall be deemed approval.

(F)

The foregoing provisions of this section shall not be deemed to apply to the pavement, repavement, reconstruction or improvement, to the laying of underground pipes and conduits for normal service extension or drainage, or to other similar work in or upon any existing street or other existing public way.

(A)

A committee of the commission is established for the purpose of hearing and acting on applications for subdivision approval when the parcel to be subdivided does not exceed three acres, no new public or private streets are proposal and no dedications are involved.

(B)

The committee shall consist of two members of the commission, who shall be appointed by the chairman, and the director or his designee. Any two members shall constitute a quorum.

(Ord. No. 3609, § 1, 12-12-92; Ord. No. 3845, § 1, 2-24-96)

The planning commission shall meet at least once each month at such time and place as may be designated. Special meetings shall be upon the call of the chairman consented to by a majority of the members.

(A)

The applicant for any site plan, subdivision plat or special use permit approval, or for any change in zone boundaries, or for any vacation of or encroachment upon any public right-of-way, or an authorized representative of such applicant, shall appear at and attend, at the time and place designated, the public hearing on and the consideration of such application by the planning commission.

(B)

In the event such applicant or representative fails to so appear and attend, the planning commission may deny and dismiss such application without prejudice to the right of the applicant to refile the application, or the commission may defer public hearing and consideration of such application until the next regularly scheduled meeting of the commission; provided, that the commission shall not defer public hearing and consideration of any application if deferral would result in the approval of the application by virtue of the inaction by the commission within the time provided by law for approval or denial of such application.

(C)

If the commission defers an application, it shall cause written notice of the time and place of its next regularly scheduled meeting to be mailed, first class, postage prepaid to the applicant at the address indicated on the application form, not less than 10 days in advance of the date of such meeting, and the applicant or his representative shall appear and attend at the time and place designated in such notice. In the event the applicant or his representative fails to appear at and attend the deferred public hearing and consideration of such application, the application shall be denied and dismissed by the planning commission and the subject matter thereof shall not be considered by the commission or city council for a period of six months from the date of such denial and dismissal.

(D)

Notwithstanding any provision in this ordinance to the contrary, no appeal shall lie to city council from the denial and dismissal of any application pursuant to the provisions of this section, and any application which has been so denied and dismissed by the planning commission shall forthwith be stricken from the city council docket.

(E)

The director of the department of planning and zoning shall append a statement setting forth the provisions of this section to all application forms to which this section is applicable.

(Ord. No. 3609, § 1, 12-12-92; Ord. No. 3743, § 2, 1-21-95)

The purpose of these regulations is to provide for the orderly division of land for development or transfer of ownership and for an accurate system of recording land division and ownership.

Unless otherwise specifically provided, the director has the duty to administer and enforce the provisions of this section 11-1700 and the authority to establish rules and regulations to do so.

(A)

Subdivision required. Any owner or contract purchaser of any land located within the city who desires to subdivide it shall make a plat of the subdivision and have it approved under this section 11-1700.

(B)

Recording prohibited. No plat or subdivision of land within the city shall be filed or recorded by the clerk of any court having jurisdiction until approved by the commission and the approval is entered in writing on the plat by the chairman or vice-chairman of the commission and the director.

(C)

Reference to unrecorded plat prohibited. No land or portion of land may be transferred, sold, offered for sale or the subject of an agreement of sale by reference to or display of an unapproved and unrecorded plat, regardless of whether the land is also described by metes and bounds.

(D)

Effect of recording. The recording of the plat shall operate to transfer in fee simple to the city that portion of land on the plat set apart for streets, alleys, easements or other public use or purpose and create a public right of passage over or use of it.

The following cases are not subject to the requirements or procedures of this section 11-1700:

(A)

Consolidation. The vacation or removal of a recorded lot line to recombine land previously subdivided does not require compliance with the provisions of this section 11-1700, provided that a copy of the plat of consolidation is filed with the director.

(B)

Council approved development. In the case of a development proposal that includes the submission of a site plan and requires the approval of city council, including without limitation cluster development and development special use permits, no preliminary plat shall be filed but the site plan or development plan submitted for approval shall contain proposed lot lines and all other information required as a part of a preliminary plat. In these cases,

(1)

The council approval shall act as the preliminary plat approval;

(2)

A final plat shall be filed in compliance with section 11-1709;

(3)

The rule regarding automatic approval of a preliminary plat if there is no action within 45 days shall not apply;

(4)

The preliminary approval is valid so long as the site plan or development plan of which it is a part remains valid;

(5)

The final plat shall be consistent with the released final site plan; and

(6)

The final plat may not be recorded before the release of the final site plan.

Subdivision plats shall be classified as preliminary and final plats. Preliminary and final subdivision plats may be combined and treated as a final plat in either of the following instances, provided that all of the information required for both a preliminary and final plat is included in the submission, the final plat complies with the requirements of section 11-1709, and the procedure for processing either a minor subdivision or a preliminary subdivision plat is followed:

(A)

A subdivision of one block or less; or

(B)

A resubdivision of existing lots.

(A)

An application for preliminary plat approval shall be submitted by the owner or contract purchaser of the subject property on forms the director may prescribe. It shall include a clear and concise statement identifying the applicant and, if different, the owner of the property, including the name and address of each person or entity owning an interest in the applicant or owner and the extent of the ownership interest. If any of those entities is a corporation or a partnership, only those persons owning an interest in excess of three percent in that corporation or partnership need be identified by name, address and extent of interest. For purposes of this section 11-1706(A), the term ownership interest shall include any legal or equitable interest held at the time of the application in the real property which is the subject of the application.

(B)

The preliminary plat shall be prepared under the charge of a professional engineer or land surveyor authorized by the Commonwealth of Virginia, or, if required by the director, by both.

(C)

No fewer than 15 copies of the preliminary plat at a scale of not less than 100 feet to the inch shall be submitted with the application. Print size not exceed 24 by 36 inches.

(D)

An application for preliminary plat approval shall include the following information and material:

(1)

Subdivision name.

(2)

The name and address of the owner or record and the applicant.

(3)

The name, address, certificate number and seal of the surveyor or engineer.

(4)

The gross area in acres and total number of buildings lots or sites involved.

(5)

The date, north point and scale.

(6)

The zoning of the property.

(7)

A form or space, not less than two and one-quarter by three and one-half inches, on which approval by the commission may be shown.

(8)

Lot lines with the dimensions of the length and width of the lots.

(9)

In the case of resubdivisions, all lot lines or lot numbers that are proposed to go out of existence by reason of the resubdivision shall be shown by dotted lines and numbers.

(10)

The location of the property immediately adjoining the proposed subdivision and the names and addresses of all of its owners.

(11)

The location and width of all proposed streets, alleys and public areas and their dimensions.

(12)

Points of connection with the city sewer system.

(13)

Location of all easements, reservations and highway setbacks, as established by section 7-1006 of this ordinance.

(14)

The width and name of adjacent existing streets, alleys, easements and public utilities, including, without limitation, lines for water, gas, electric, telephone, storm and sanitary sewer, and railroads shown graphically.

(15)

Limits of floodplains, resource protection areas, and resource management areas.

(15.1)

In the case of properties containing resource protection areas, plat shall include a notation to retain an undisturbed and vegetated 100-foot-wide buffer area.

(15.2)

In the cases of properties containing resource protection areas, plat shall include a notation specifying permitted development in the resource protection area is limited to water dependent facilities or redevelopment, including the 100-foot-wide vegetated buffer area.

(16)

The location of any grave or object or structure marking a place of burial.

(17)

In the following cases the preliminary plat shall be superimposed on a topographic map, at a scale of not greater than 100 feet to the inch, showing contours at intervals not greater than two feet or greater intervals when permitted by the director, and correlated to the U.S. Coast and Geodetic Survey datum, for the purpose of showing the character and drainage of the land:

(1)

Whenever any land within the parcel subdivided is to be dedicated to public use; or

(2)

For all subdivisions containing lots or parcels of less than one-half acre.

(18)

The proposed street grade data and the method of storm water disposal.

(19)

The general location, dimension, size, height and species of major trees and shrubs.

(20)

Existing building with dimensions from the buildings to the nearest lot lines.

(21)

When known, areas that can reasonably be expected to or which do contain soils or materials contaminated with, but not limited to heavy metals, petroleum products, PCB's, pesticides, flyash, or other toxic or hazardous materials.

(22)

When known, underground storage tanks.

(23)

When known, areas located within 1,000 feet of a former sanitary landfill, dump or disposal area.

(24)

When known, areas with the potential of generating combustible gases.

The following procedures shall govern the processing and review of applications for preliminary plat approval.

(A)

Filing application.

(1)

An application for preliminary plat approval shall be filed with the director and shall contain the information specified in section 11-1706.

(2)

No application shall be accepted unless it is determined to be complete by the director.

(B)

Staff review. The director shall review the application to determine if the application's contents are complete and adequate for appropriate review and shall send the application to other relevant departments for their review and recommendation. Upon receipt of the departments' recommendations, the director shall prepare a staff report indicating the departments' judgment on the merits of the application. If the director does not agree with a recommendation prepared by another department, that recommendation shall be stated separately and the reasons for the director's disagreement shall be included in the report.

(C)

Docketing for final action. The director shall see that all required staff reviews are completed and that the application is docketed for consideration in sufficient time for action within 45 days from the day a complete application was accepted, unless the applicant agrees to a longer period of time.

(D)

Changes to application. If an applicant submits materials to supplement its application before final action by the commission, the director shall review the additional material to determine whether additional staff time is necessary to assess the application. If additional time is necessary, and consistent with section 11-1707(C) above, the director may extend the review period or, in the event of a major revision, may require that a new application be filed. In either event, the time limitation of section 11-1708(B)(2) shall not apply.

(A)

Standard for approval. An applicant for preliminary plat approval shall demonstrate to the satisfaction of the commission that:

(1)

The applicable factors of section 11-1710 have been appropriately considered in the plat;

(2)

The subdivision will not adversely affect the public health, safety and welfare; and

(3)

The application complies with all provisions of this ordinance and all applicable laws.

(B)

Action by planning commission.

(1)

Public hearing. Within 45 days of the day a complete application was accepted by the director, the commission shall hold a public hearing and act on the application for preliminary plat approval by approving or disapproving the plat or approving it with conditions, required revisions, additions or changes. The commission shall give its reasons for a disapproval.

(2)

Automatic approval. Failure of the commission to act within 45 days from the day a complete application is accepted shall be deemed to constitute approval of the plan unless, before the expiration of such period, the applicant agrees to a longer period of time.

(3)

Restrictions on buildings. The commission shall have the power to agree with the applicant on restrictions or requirements governing buildings and land within the subdivision, provided those restrictions do not authorize a violation of any ordinance of the city. Those requirements or restrictions shall be stated upon the final plat before approval and recording and shall have the same effect as though set out as a part of this ordinance.

(C)

Action by subdivision committee. The director may refer an application for subdivision to the subdivision committee established under section 11-1506 when the parcel to be subdivided does not exceed three acres and no dedication of land is involved. In that case, the following procedures shall apply:

(1)

The committee shall act on an application referred to it after a public hearing with notice under section 11-300 or it may, in its discretion, refer an application to the full commission for action. The committee's action, including any referral to the full commission, shall occur within the 45-day limitation of section 11-1708(B)(2).

(2)

A decision of the committee shall be considered the final action of the commission unless an appeal is filed.

(3)

A decision of the subdivision committee, except a decision to refer an application to the full commission for action, may be appealed to the commission by the same persons identified in section 11-1708(D)(1) by filing a written notice of appeal with the director within five days following the committee action. The appeal shall be heard de novo by the commission at the first regular meeting for which proper legal notice can be given.

(D)

Appeal of action of preliminary plat.

(1)

After the commission approves or disapproves a plat submitted under this section, there may be an appeal from the decision to the city council. An appeal from an approval must be made by the owners of at least 20 percent of the area of the land within 300 feet of the boundaries of the proposed subdivision. The director shall verify that those filing are legal property owners. The director of transportation and environmental services shall verify the required 20 percent area. Streets, alleys and land dedicated to public use or land owned by the city, state or federal government or public agencies shall not be included in computing that area.

(2)

An appeal from an approval or disapproval by the commission shall be made in writing and filed with the city clerk within 15 days from the decision of the commission. When an appeal is filed, the city council shall schedule at least one de novo public hearing on the matter and may affirm, reserve or modify the decision of the commission or return the matter to the commission for further consideration. On appeal the same standards shall be applied by the council as are established for the commission.

(3)

When an appeal is filed, the commission shall forward one copy of the plat, together with its reasons for approval or disapproval, to the city council and shall designate at least one member of the commission to appear before the city council at the public hearing.

(4)

The legal effect of commission approval shall be stayed pending the outcome on appeal.

(A)

Application for approval of final plat. If a preliminary subdivision plat is approved, or approved with modifications, and no appeal is taken, the applicant shall have a final plat of subdivision prepared by a professional engineer or land surveyor authorized by the Commonwealth of Virginia, or if required by the director, by both. The plat shall conform to the Standards for Plats adopted by the Virginia State Library Board under 42.1-82 of the Virginia Code. The plat may show only part of the land designated on the preliminary subdivision plat if desired. The final plat shall incorporate any changes requested by the commission on the preliminary plat. The original tracing and five prints of the final plat shall be filed with the director and shall constitute the application for approval for the final plat.

(B)

Contents of application. The final plat shall contain the following:

(1)

All of the information required of a preliminary plat under section 11-1706(D), except for items 16—24;

(2)

The location of metal monuments of not less than one inch in diameter and 24 inches in length shown this: O, and located in the ground at each intersection of streets and alleys with plat boundary lines, and at all points on street, alley and boundary lines where there is a corner, change in direction, or curvature.

(3)

A surveyor's or engineer's seal and certificate of survey in the following form, which may be modified to accommodate title information:

"I hereby certify that I have carefully surveyed the property delineated by this plat, and that is it correct to the best of my knowledge and belief; that this is a subdivision of part (or all) of the land conveyed by _______ to _______ by deed dated _______ and recorded among the land records of _______ in Deed Book _______ at page _______ and is within those boundaries; and that all required monuments have been installed where indicated; except those that will be installed at a later date but before completion of the project.

Certified Surveyor or Engineer"

(4)

A curve table shall be placed on the final plat containing the following for all curvilinear boundaries and street centerlines; delta, radius, arc, tangent, chord and chord bearing. All distances shall be shown to the nearest one-hundredth of a foot; angles or bearings to the nearest ten seconds.

(C)

Approval. Final plats submitted under this section shall be checked for substantial compliance with the preliminary plat previously approved by the commission and for compliance with the provisions of this section 11-1700. If the director determines that the plat conforms with such requirements, the plat shall be approved, and he and the chairman or vice-chairman of the commission shall sign it.

(D)

Retention of original. Following release of authenticated copies of the approved plat for recording purposes, the original tracing shall be filed in the office of the director, where it shall be kept as a permanent record and for purposes of reproduction.

In reviewing an application, the commission shall consider the following:

(A)

All subdivisions shall be planned to include adequate and convenient open space for traffic, to provide for the installation of utilities, to give access to fire fighting apparatus, and to give due consideration for suitable sites for schools, parks, playgrounds and other desirable amenities.

(B)

No lot shall be resubdivided in such a manner as to detract from the value of adjacent property. Lots covered by a resubdivision shall be of substantially the same character as to suitability for residential use and structures, lot areas, orientation, street frontage, alignment to streets and restrictions as other land within the subdivision, particularly with respect to similarly situated lots within the adjoining portions of the original subdivision. In determining whether a proposed lot is of substantially the same character for purposes of complying with this provision, the commission shall consider the established neighborhood created by the original subdivision, evidence of which may be shown by:

(1)

Subdivision plat documents, including amendments to the subdivision over time, as well as the development that has occurred within the subdivision; and

(2)

Land in the same general location and zone as the original subdivision with the same features so as to be essentially similar to the original subdivision area.

(3)

No resubdivision shall be approved which results in the creation or the continuation of a lot, building or structure which does not comply with the provisions of this ordinance, unless the commission expressly authorizes a variation pursuant to section 11-1713 of this ordinance.

(C)

The plat shall conform as near as possible to the master plan and its amendments, a copy of which is on file in the office of the director.

(D)

The subdivision shall conform to the requirements of the zone in which the subdivision is situated.

(E)

All streets that are designated as part of the main street system on the master plan shall be coterminus with adjoining links in the system and at the same or greater widths.

(F)

As far as practicable, all proposed streets shall be continuous and in alignment with existing streets.

(G)

Public streets and alleys shall conform to the requirements of section 5-2-4 of the City Code. Private streets shall comply with the general standards and specifications for private streets adopted by the director of transportation and environmental services.

(H)

Names of new streets shall be designated in accordance with section 5-2-64 of the City Code. The names of existing streets may not be duplicated but an existing street may be extended under the same name.

(I)

In general, side lot lines shall be at right angles to street lines, and on curved streets the lot lines shall be radial.

(J)

All lots shall be numbered. In resubdivisions, the lots shall be numbered in the series of 500 for a first resubdivision, and in the series of 600 for a second resubdivision and so on.

(K)

The blocks shall be numbered, and no block shall be planned to provide for more than two rows of lots. Crosswalks, not less than 10 feet wide and paved to a width of four feet, may be required in blocks over 750 feet long.

(L)

Required off-street parking shall not be an integral part of any public street.

(M)

Through lots shall be avoided whenever possible.

(N)

Fillet curves having a radius of not less than 25 feet shall be provided for all corners at street intersections, provided, that a lesser curve may be approved by the director of transportation and environmental services.

(O)

If a piece of land is to be subdivided into larger parcels than for building lots, the land shall be divided to allow for the opening of major streets and the ultimate extension of adjacent minor streets, and all such parcels shall have legal frontage on a dedicated public street.

(P)

Permanent reference monuments shall be set at the ends of any lines as may be designated by the director of transportation and environmental services, but no fewer than two such monuments shall be set in each block. All monuments shall be set in the ground before the final plat is approved, unless, in the opinion of the director of transportation and environmental services, the amount of grading involved in the project will make such monuments useless. If earlier setting would be useless, the monuments shall be set before release of the performance bond or as specified by the director of transportation and environmental services.

(Q)

The engineer or surveyor shall provided a boundary survey of the entire parcel and each subsequent section. The allowable error of closure of such parcel or section shall not be less accurate than one part in 10,000. The boundaries of the parcel or section shall be connected with an calculated on the basis of the Virginia coordinate system, north zone, and the coordinates of two adjacent corners shown on the plat if a coordinate station lies within 1,200 feet of the nearest corner of the entire parcel in question; provided that a subdivision consisting of fewer than seven lots or an area of less than three acres need not be reported on the Virginia coordinate system unless a coordinate station is available within 500 feet of the property to be subdivided. Resubdivision of lots in existing recorded subdivisions shall not be subject to this requirement.

(R)

Street plans and profiles, including, but not limited to, storm drainage and sanitary service sewer facilities, and all underground public service facilities, existing and proposed, including without limitation water sewer and electric, shall be submitted and approved by the director of transportation and environmental services before release for recordation of the final plat. For culs-de-sac or involved intersections, spot grades may be required if the director of transportation and environmental services deems it necessary. The public service companies shall provide plans to scale or other information sufficient to provide the project engineer with data necessary to complete accurate and detailed street plans and profiles so that the street plans and profiles shall conform to the standards set by the director of transportation and environmental services. Facilities shall be constructed in accordance with approved plans, unless amendments are approved by the director of transportation and environmental services.

Improvements required in conjunction with subdivision approval shall be the same as those required for site plans under section 11-412 and the cost of those improvements shall be established under section 11-413 of this ordinance.

A major change to an approved subdivision plat, other than those requested by the commission, requires that an amended subdivision plat be filed and approved. A minor, nonmaterial modification may be approved by the city manager, on the recommendation of the director.

(A)

The commission may, by vote of a majority of its members, authorize specific variations from the provisions of this section 11-1700, when the commission finds that (i) a strict adherence to such provisions would result in substantial injustice (ii) the use and character of the resulting lots or parcels in such a subdivision would not be inconsistent with the use provisions of the zone in which the property is situated and with the existing development in the immediate area; (iii) and one or more of the following special circumstances exists:

(1)

Extremely rugged topography.

(2)

Irregularity in shape of parcel preventing conformance with normal lot area or frontage requirements.

(3)

Insufficient frontage on existing street where the interior of the tract can be served only by a street substandard in width when not serving more than five lots, provided the street is not less than 30 feet in width. If only a single lot is served, the width may be less than 30 feet. A turn around area may be required.

(4)

Streets along border of the subdivision where the subdivision borders on unsubdivided land and the remaining street width will be provided from adjacent land.

(5)

Resubdivision of lots in subdivisions of record as of January 1, 1952, where, because of existing structures or gross area of land involved, the subdivided lots would not conform to all of the requirements of the zone in which the subdivision is located.

(B)

As used in this section, "substantial injustice" means that the strict application of this ordinance would create an unreasonable burden on the development, use and enjoyment of the property which outweighs the land use or land development purposes served by the specific zoning provision or provisions of this ordinance at issue.

(C)

The applicant shall have the burden of establishing each element required for the grant of a variation.

(A)

Time for recording. Approval of a preliminary plat shall be null and void if no final plat or the subdivision or a section of its it recorded in the office of the clerk of the circuit court of the city within 18 months after the date of approval, unless application for an extension of time is made.

(B)

Extension of time. An extension of time for recording a final plat may be granted by the commission if an application if filed with the director during the 18-month period and the application is granted by the commission. No extension of time shall be granted unless an additional filing fee, which is one-half of the filing fee charged for final plats, is paid.

(Ord. No. 3845, § 1, 2-24-96; Ord. No. 4457, § 2, 6-27-06; Ord. No. 4472, § 2, 1-20-07; Ord. No. 4652, § 1, 4-17-10; Ord. No. 5027, § 2, 6-18-16; Ord. No. 5374, § 31, 10-16-21; Ord. No. 5580, § 7, 4-26-25)