The city council may amend, supplement, change, modify or repeal the location and boundaries of zoning districts within the city through rezoning and further may amend, supplement, change, modify or repeal provisions of the text of this zoning ordinance.

A.

Methods. An application for a change in the zoning district classification for a property (rezoning application) may be made in one of two ways:

1.

By the filing of an application with the planning department by the owner of the property or by a person or persons having an interest in the property and being expressly authorized by the owner to so file.

2.

By referral from city council to the planning commission. Such referral may be by motion or by resolution and may come either as an initiative from the city council or in response to a proposed amendment developed by the planning commission or by city departments.

B.

Information required in application by property owner. Any rezoning application filed by a property owner or authorized agent with the planning department shall contain the following information:

1.

The applicant's name and address and his or her interest in the subject property.

2.

A statement signed by the owner or authorized applicant containing the following information:

a.

A listing of names and last known addresses of all applicants, title owners, contract purchasers and lessees of the land described in the application and, if any of the foregoing is a trustee, each beneficiary having an interest in such land. The application shall also contain a listing of the shareholders of all corporations of the foregoing who own ten (10) percent or more of any class of stock issued by said corporation and, where said corporation has ten (10) or fewer shareholders, a listing of all shareholders. This requirement may be waived by the planning director or designee where the owner or applicant, as applicable, is a publicly-held corporation. The application shall also contain a listing of all partners, both general and limited, in a partnership, all members of a limited liability company, and all trustees of a church.

b.

An oath or affirmation by the owner or applicant that no member of the city council or the planning commission owns or has any financial interest in the land to be rezoned or has any financial interest in the outcome of the decision, as defined by the Virginia Conflict of Interests Act. If any member of the city council or the planning commission owns or has any financial interest in the land or in the outcome of the decision, the owner or applicant must so state.

3.

Where the application is filed by an agent, contract purchaser or lessee, a written and notarized statement signed by the title owner or owners indicating endorsement of the application by the owner or owners and authorizing the applicant to seek the rezoning. Such statement shall be on a form approved by the planning department and the city attorney.

4.

A certificate of title for the property, prepared and signed by an attorney licensed to practice law in Virginia, or a current title insurance policy or status of title prepared by a title insurance company (or its agent) licensed to operate in Virginia, or a combination of both, as approved by the city attorney. Such certification, to be referred to as the "title report," shall describe the property that is the subject of the application, identify all parties having a recorded interest in the property, including legal and equitable owners, and state the title or interest of each party. The title report shall state the date through which the title to the property was examined, which date shall not be more than six (6) months prior to the date that the application is filed.

5.

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

6.

The zoning classification and present use of the subject property.

7.

The district to which the applicant seeks reclassification.

8.

The names and addresses of all owners of all abutting property and of all property immediately across the street or road from the property which is the subject of the application.

9.

A map showing the actual dimensions of the subject property according to the recorded plat of such property or, where a recorded plat within the chain of title is not available, a map showing the property's dimensions as described in the most recent conveyance of the property. Such map shall contain the following:

a.

All existing and proposed right-of-way widths of streets adjacent to the property, and all right-of-way widths of streets identified in the city's adopted Master Transportation Plan as running through the property.

b.

For properties located wholly or partially within the Chesapeake Bay Preservation Area District, contour lines, showing at a minimum the most recent contour mapping maintained by the city.

c.

For properties located wholly or partially in the Northwest River Watershed Protection District, the boundaries of the district and existing drainage patterns in relation to the property.

10.

Excepting applications in which the applicant/owner submits a properly executed document to the planning department evidencing their intent to "opt out" of the statutory test for unreasonable proffers pursuant to Virginia Code Section 15.2-2303.4(D), a statement explaining how the property will be served adequately by essential public facilities and services, such as highways, streets, police and fire protection, emergency medical services, stormwater and drainage facilities, refuse disposal, water and sewer, libraries, and schools. Such statement shall, unless expressly waived in whole or in part by the planning director or respective reviewing department, include: (a) estimates of vehicular trips per day to and from the property if the property is developed as currently zoned, the trips that will be generated if the property is developed under the proposed rezoning, and the resulting impact upon and receiving capacity of surrounding streets and highways, including a specific description of the methodologies used to evaluate said impact; (b) estimated number of school age children generated by the proposed rezoning and a specific description of the methodologies used to generate the estimate; (c) estimates of water and sewer demand generated if the property is developed under the proposed rezoning, including a specific description of the methodologies used to generate the estimates. The statement may be supplemented with data illustrating the best means of addressing impacts that are specifically attributable to any proposed new residential development or residential component of any proposed mixed use development, provided that all such data shall be accompanied by a specific description of the methodologies used.

11.

For new residential developments or mixed use developments with a residential component, the applicant may, but is not required to, describe any voluntary proffers to be offered by the applicant to address impacts to onsite public infrastructure that are specifically attributable to the proposed residential development. For all such voluntary proffers of onsite improvements beyond that which is required by chapter 70 of the City Code or article 18 of this ordinance, the applicant shall provide the planning department with a thorough analysis providing sufficient justification that the need for the onsite proffer is specifically attributable to the impacts of the proposed development. Residential rezoning applications filed or amended on or after July 1, 2019 in which the applicant(s)/owner(s) submit a signed final proffer statement in accordance with Virginia Code Section 15.2-2303.4(D) are exempt from the requirements of this provision: provided that the proffer statement is approved by the city attorney's office and all proffers otherwise comply with the mandates of the Virginia Code.

12.

For new residential developments or mixed use developments with a residential component, the applicant may, but is not required to, describe any voluntary offsite proffers, including cash proffers, to be offered by the applicant to address impacts to public transportation facilities, public safety facilities, public school facilities and/or public parks. For all such voluntary offsite proffers, the applicant shall provide the planning department with a thorough analysis providing sufficient justification that the need for the offsite proffer is specifically attributable to the impacts of the proposed development. Additionally, the applicant shall describe how each of the proffers addresses a need, or an identifiable portion of a need, for one or more public facility improvements in excess of existing public facility capacity at the time of the rezoning and how each new residential development or new residential use applied for receives a direct and material benefit from the proffer. Residential rezoning applications filed or amended on or after July 1, 2019 in which the applicant(s)/owner(s) submit a signed final proffer statement in accordance with Virginia Code Section 15.2-2303.4(D) are exempt from the requirements of this provision; provided that the proffer statement is approved by the city attorney's office and all proffers otherwise comply with the mandates of the Virginia Code.

13.

A statement, if applicable, that the application is one for conditional rezoning pursuant to section 16-200 et seq. below and containing the information required by those sections.

14.

When the proposed use of the rezoned property includes or proposes land disturbance for residential, assembly, day care, group home, recreation, school, library, or similar type of development where exposure to contaminated soil or water would pose a threat to the public health and safety, the application shall include a phase I environmental site assessment prepared in accordance with the specifications in the Chesapeake Public Facilities Manual; provided that the director of development and permits, with the concurrence of the director of public works, may waive this requirement if the following conditions are satisfied:

a.

The applicant/owner submits a documentation, in a form acceptable to the directors of development and permits and public works, requesting to waive the phase I environmental site assessment and demonstrating that the proposed land disturbance does not pose a significant risk to the environment or the public health and safety; and

b.

The applicant/owner signs and submits documentation, in a form acceptable to the city attorney, assuming all risk and indemnifying and holding the city harmless for any actions or liability that result from such waiver.

Where deemed necessary by the department of public works, the applicant shall also submit a phase II environmental site assessment prepared in accordance with the Chesapeake Public Facilities Manual. The phase I and phase II environmental site assessments shall contain recommendations to address any and all adverse environmental conditions of the property, including without limitation, contamination of the soil, surface water or groundwater.

15.

Such additional materials and information as reasonably may be required by the reviewing departments, the planning commission or city council in order for the application to be fully and appropriately reviewed and considered. The planning department shall develop instructions and/or forms for rezoning applications which establish the criteria for determining that an application is complete.

16.

Information in a format approved by the city treasurer demonstrating that there are no delinquent real estate taxes due on the subject property.

17.

Excepting applications in which the applicant/owner submits a properly executed document to the planning department evidencing their intent to "opt out" of the statutory test for unreasonable proffers pursuant to Virginia Code Section 15.2-2303.4(D), applications proposing residential rezonings and mixed use rezonings with a residential component shall submit a certificate affirming that all onsite and offsite proffers, including cash proffers, are voluntary, reasonable, and offered in accordance with the dictates of the Virginia Code. The certificate shall further state that the city has not required any unreasonable proffers for the rezoning.

Notwithstanding such criteria listed above, the planning director, the planning commission or the city council may at any time during the review process find that essential information is lacking and may deem the application incomplete and defer further review or action until such time that such information is provided.

C.

Certification. All applications for rezonings shall contain a certification by the owner that to the best of his knowledge, the application is complete and accurate. This certification shall apply to all plans, environmental reports and attachments accompanying the application. No application shall be deemed complete without this certification. False certifications shall be deemed a violation of this ordinance and shall be punishable by a civil penalty in accordance with section 20-202 of this ordinance.

(Ord. No. 02-O-137, 11-19-02; Ord. No. 05-O-015, 3-8-05; Ord. No. 05-O-130, 10-18-05; Ord. No. 10-O-140, 11-16-10; Ord. No. 16-O-083, 9-20-16; Ord. No. 17-O-081, 11-21-17; Ord. No. 19-O-096, 7-16-19; Ord. No. 21-O-067, 6-15-21)

Note— Ord. No. 16-O-083, adopted September 20, 2016, provides an effective date retroactive to July 1, 2016.

A.

Planning commission action.

1.

Consideration of a change in the text of the zoning ordinance may be made by the planning commission upon its own initiative; by recommendation from the planning director, zoning administrator or city attorney to the planning commission; or by direct referral from the city council to the planning commission. Citizens may seek a change in the text of the zoning ordinance by requesting the planning commission or city council to direct the drafting of such a change for consideration.

2.

City council shall not enact an amendment to the text of the zoning ordinance without prior review and recommendations by the planning commission. This shall not preclude the council from approving additional modifications to any

proposed amendment after its review and recommendations by the planning commission.

B.

Form for amendments; related materials. Proposed text amendments shall be written in such form and be accompanied by such materials as the city council or planning commission may direct.

A.

Specified forms and format. All applications for changing the zoning classification for property shall be made on approved forms and/or in a format approved by the planning department.

B.

Preapplication conference. Where the property involved in a rezoning application is three hundred (300) or more acres in gross area, a preapplication conference shall be required. Any application for such property shall not be considered to have been filed until such conference has been held.

C.

Review for completeness. Each application for a change in the zoning classification for property shall be reviewed by designated departmental staff for completeness. Such review normally shall be completed within fourteen (14) days of the submission of the application. If the application is not complete, the planning department shall return the application to the applicant, identifying the manner and areas in which the application is incomplete.

D.

Departmental review and scheduling of application for hearing. Following the submission of the applicant's final response to departmental comments and recommendations, a staff report and recommendations shall be completed for submission to the planning commission.

A.

Types of notice required. Following completion of a staff report and recommendations on an application for rezoning or on a proposed change in the text of the zoning ordinance, a hearing before the planning commission shall be scheduled. Notice of the planning commission public hearing shall be provided as follows:

1.

The planning commission, with the planning department acting as its agent, shall provide notice of the public hearing in accordance with Virginia Code Section 15.2-2204.

2.

The planning department, as agent of the planning commission in providing notice by mailing, may send such notice by first class mail to the last known address of such owner as shown on the current real estate tax assessment books or current real estate tax assessment records provided that a representative of the department makes an affidavit that such mailing has been made and files such affidavit with the papers related to the application. In any event, the applicant shall be solely responsible for ensuring that the mailing list provided to the department fully complies with the requirements of this section. The planning department may require the applicant to provide properly addressed envelopes and appropriate postage and such other materials and information as the department may deem necessary.

3.

In the case of a condominium or a cooperative, any written notice required by applicable law to be mailed may be mailed to the unit owners' association or proprietary lessees' association, respectively, in lieu of each individual unit owner.

4.

In the case of a proposed conditional rezoning in which proffers are made for the extension of an existing public street, then, in addition to the advertising required above, written notice shall be given by the planning commission, with the planning department acting as its agent, at least five (5) days before the hearing, to the owner, owners or their agent of each parcel of land involved in the proffered street extension, as well as to the owner, owners or their agent of each parcel abutting the land proposed to be improved as a public street. Such written notice shall contain a reference to the proposed general location of the street extension. No remailing shall be required in the event the matter is continued, except that where the location of the proposed public street extension is changed, written notice shall be sent to the owner, owners or their agent, of all newly-involved parcels of land, as well as to the owner, owners or their agent of parcels of land abutting the proposed modified location of the proffered public street. Nothing in this subsection shall be construed to invalidate any subsequently adopted amendment or ordinance because of the failure to give written notice required hereunder so long as all notice procedures in Virginia Code Section 15.2-2204 are met.

5.

In the case of an application for a change in the zoning classification of property, it shall be the responsibility of the applicant to post one (1) or more signs so that at least one (1) sign is facing and clearly visible from each public right-of-way from which the property for which the application is filed is visible. In cases where the property is not visible from a public right-of-way, the location of the sign shall be specified by the planning department. Where the subject property abuts more than one (1) right-of-way, a minimum of one (1) sign shall be posted on each right-of-way. Properties that are one (1) acre or more in size shall post a sign at every five hundred (500) feet of road frontage. As used in this subsection, the term "right-of-way" shall not include interstates. In the case of a proposed conditional rezoning in which proffers are made for the extension of an existing public street, signs shall be posted at the beginning and terminus of the proposed street extension. All signs required under this subsection shall be erected not less than fourteen (14) days prior to the date of the first scheduled public hearing before the planning commission and shall include notice of the time and place of that first hearing and the specific nature of the matter involved. Signs may be purchased from the city or acquired independently; provided that all signs must conform to the planning department's posting template. Proof of posting shall be provided to the planning department at least fourteen (14) days prior to the date of the first scheduled public hearing with planning commission. The applicant shall be responsible for updating the sign to ensure that it accurately reflects the current status of the public hearing as either before the planning commission or city council. In addition, the applicant shall endeavor to protect the sign from vandalism and theft, maintain each sign in an erect position in its posted location and ensure that each sign remains legible. The applicant shall continually maintain the sign on the property to the conclusion of the public hearing by city council. The posting of the signs shall be in accordance with section 14-700 et seq. of this ordinance. The signs shall not be posted on trees, towers, utility poles, fence posts or similar freestanding objects or on buildings or structures unless the application pertains to the reconstruction, renovation or expansion of the building or structure to which the sign is attached. If the planning commission or city council determines that the requirements of this section are not met and that the improper posting of the sign(s) materially deprived the public of reasonable notice of the public hearing, then the hearing on the application may be continued at the discretion of the commission or council; provided that the city council may, for any other appropriate legal basis, deny such application. Nothing in this subsection shall be construed to invalidate any subsequently adopted amendment or ordinance because of the failure to post signs in accordance with the requirements herein so long as all notice procedures in Virginia Code Section 15.2-2204 are met. All signs shall be removed from the property within five (5) days of final determination of the matter by city council. Any sign remaining on a property more than five (5) days after final city council action on the rezoning application to which it refers shall be an illegal sign and a violation of this ordinance.

6.

The applicant shall be responsible for all costs of providing required notice of the public hearing.

7.

Nothing in this section shall be construed as to invalidate any subsequently adopted amendment or ordinance because of the failure to give notice under this section, provided that all notice procedures required by state law are satisfied in full.

8.

The planning commission shall consult with the installation commander of any military installation that will be affected by potential development within the city so as to reasonably protect the military installation against any adverse effects that might be caused by the development.

(Ord. No. 96-O-147, 9-17-96; Ord. No. 98-O-138, 9-15-98; Ord. No. 01-O-097, 10-16-01; Ord. No. 02-O-123, 10-15-02; Ord. No. 04-O-144, 10-19-04; Ord. No. 12-O-109, 11-20-12; Ord. No. 13-O-089, 8-13-13; Ord. No. 17-O-081, 11-21-17; Ord. No. 18-O-028, 3-20-18; Ord. No. 21-O-049, 5-18-21; Ord. No. 23-O-091, 8-15-23)

A.

Hearing and continuances. The planning commission shall hold a duly noticed public hearing on all proposed changes in zoning district classifications or in the text in the zoning ordinance. The commission, in its discretion, may continue a hearing on a matter to subsequent meetings, subject to the following provisions.

1.

If the applicant objects to the continuance of the planning commission's consideration of a rezoning application to a subsequent meeting, the commission must take final action on the application within one hundred days of the meeting at which the applicant noted objection to such continuance. If the planning commission fails to take final action within that time period, the commission shall be deemed to have recommended approval of the application. The matter shall then be scheduled for hearing before city council in accordance with the provisions of this zoning ordinance.

2.

If the applicant requests a continuance or agrees to a continuance, to a subsequent meeting of the planning commission, that subsequent meeting shall be deemed the first formal meeting of the planning commission on such application following referral for purposes of compliance with the time period for commission review and action.

3.

If the applicant in any way modifies any element of the application for rezoning at the time of its consideration by the planning commission, such change shall constitute grounds for continuance of the planning commission's review of the application. It shall be within the discretion of the planning commission to take final action on the application at the hearing at which the application is modified or to continue hearing to a subsequent meeting. Such subsequent meeting shall be deemed the first formal meeting of the planning commission to review the modified application for purposes of compliance with the time period for commission review and action.

4.

The city council, by motion or resolution, may direct the planning commission to report to the council its recommendations regarding a proposed rezoning of a piece of property or a proposed amendment to the text of this zoning ordinance. Unless a shorter time is prescribed om the referral resolution, the planning commission must report its recommendation within one hundred (100) days of its first meeting after the date of the referred ordinance. City council may require a report in less than one hundred (100) days only after a properly advertised public hearing.

B.

Recommendations to city council. After the conclusion of the planning commission public hearing, the planning commission shall report to the council its recommendations with respect to the proposed amendment. Any recommendation in favor of a change in a zoning classification or in a change in the text of this ordinance shall require a vote by a majority of the commission members attending a meeting at which a quorum, under the commission's rules, is present.

1.

The planning commission need not confine its recommendations to the proposed amendment as set forth in the application. If the proposed amendment consists of a change in the text of this ordinance, the commission may recommend the change in a revised form. If the proposed amendment consists of a change in the zoning district boundaries, the commission may reduce or enlarge the extent of the land that it recommends be rezoned or it may recommend that the land be rezoned to a different zoning district classification than that requested. The commission may recommend these changes in such a revised form if the commission is of the opinion that such revision is in accordance with sound zoning practice and is in furtherance of the purposes of this zoning ordinance; provided, however, that before recommending a larger extent of land or a rezoning to a more intense classification than was set forth in the application, the commission shall be required to hold a further hearing on the matter, after new notice has been provided.

2.

If the request is for a change in the text of this zoning ordinance, the recommendation of the planning commission should contain findings with respect to one or more of the following matters, as the commission determines to be most significant:

a.

Whether and in what respect the text amendment is consistent with the Chesapeake adopted Comprehensive Plan.

b.

Whether and in what respect the proposed text amendment is consistent with the intent and purpose of this ordinance.

c.

The areas of the city that are most likely to be affected by the proposed text amendment and the manner in which those areas will be affected.

d.

Whether and in what respect the proposed text amendment is necessitated by a change in conditions in the zoning districts affected and the nature of such changed conditions.

3.

If the application is for a reclassification of property to a different zoning district classification (a rezoning), the report of the planning commission should contain findings with respect to one or more of the following matters, as the commission determines to be most significant:

a.

Whether and in what respect the proposed zoning district classification is consistent with the Chesapeake adopted Comprehensive Plan.

b.

Whether and in what respect there are any changed or changing conditions in the area affected that make the proposed rezoning necessary.

c.

Whether and in what respect the range of uses in the proposed zoning district classification are compatible with the uses permitted on other property in the immediate vicinity.

d.

Whether and in what respect adequate public facilities and services exist or can be provided to serve the uses that would be permitted on the property if it were rezoned.

e.

The impact that the uses that would be permitted if the property were rezoned will have on the volume of vehicular and pedestrian traffic and traffic safety in the vicinity.

f.

Whether and in what respect the proposed rezoning will correct an error in the application of this zoning ordinance as applied to the subject property.

g.

Whether a reasonably viable economic use of the subject property exists under the current zoning.

h.

Whether the proposed use of the property poses a risk to human health or the environment.

i.

Whether the condition of the property, including without limitation, the soil, surface water and groundwater, are suitable for the proposed use.

j.

Whether the propose use of property in the Fentress Airfield Overlay District conforms with the regulations, compatibility tables and avigation easement program set out in section 12-400 et seq. of this ordinance.

(Ord. No. 05-O-130, 10-18-05; Ord. No. 05-O-149, 11-9-05; Ord. No. 17-O-081, 11-21-17; Ord. No. 19-O-140, 10-15-19)

A.

In general. Notice of the city council public hearing shall be provided by advertisement in accordance with the notice requirements set out in section 16-105(A) above, with the exception that mailed notice shall not be required. The applicant shall be responsible for all costs associated with providing the notice required for public hearing.

B.

Concurrent publication. At the sole discretion of city council, newspaper notice of the planning commission meeting and of the city council meeting to consider an application for change in a zoning district classification or for change in the text of this zoning ordinance may be published concurrently.

C.

Joint public hearing. At the sole discretion of city council, the planning commission and city council may hold a joint public hearing after public notice as set forth above.

(Ord. No. 95-O-034, 2-21-95)

A.

Existing zoning classification presumed valid. The existing zoning classification of a piece of property shall be presumed to be valid.

B.

Matters to be considered in reviewing proposed text amendments. Proposed text amendments shall be reviewed on the basis of the factors set out in section 16-106(B)(2) above and the standards and purposes set out in section 1-200 of this ordinance.

C.

Consideration of changes in a rezoning application or proposed text amendment.

1.

Whenever a rezoning application is submitted to the city council and the applicant seeks to change such application by enlarging the extent of land to be rezoned and/or changing the rezoning to a more intensive use than was contained in the public notice, city council at its discretion may refer the application to the planning commission or it may hear and act on the application, but only after additional notice and hearing as set forth above.

2.

Whenever a rezoning application is submitted to the city council, and the applicant seeks to change certain aspects of the application which do not affect the zoning classification being sought or the extent of land involved or which reduce the extent of land to be rezoned and/or change the rezoning to a less intensive use than was contained in the public notice, city council at its discretion may refer the application to the planning commission or may hear and act on the application.

3.

Whenever a proposed zoning ordinance text amendment is submitted to the city council, the council may make such changes to the proposed text as it deems appropriate, without referring the proposed amendment to the planning commission, provided that the general subject matter of the text amendment remains the same.

If city council considers and denies a particular application for changing the zoning classification of a parcel, it shall not reconsider substantially the same application for a period of one (1) year from the date of the council's final action on the prior application.

Where the amendment of a zoning district classification would be deemed inappropriate under normal circumstances, because the uses, structures, configurations, or densities permitted under the proposed rezoning are incompatible with or might otherwise interfere with the character of the existing or planned surrounding properties and community, conditional rezoning may provide a more flexible and adaptable zoning method, under which a zoning reclassification may be allowed, subject to certain conditions which are voluntarily proffered by the applicant for the protection of the community. Such conditions, which are not generally applicable to land similarly zoned, may serve to ensure that the proposed rezoning will be compatible with the surrounding community, provided that (1) all onsite and offsite proffers are offered in accordance with the mandates of the Virginia Code; and (2) the conditions are in conformity with the adopted Comprehensive Plan. Reasonable conditions shall not include, however, conditions that impose upon the applicant the requirement to create a property owners' association under Section 55-508 et seq. of the Code of Virginia, which includes an express further condition that members of a property association pay an assessment for the maintenance of public facilities owned in fee by a public entity, including open space, parks, schools, fire stations, and other public facilities not otherwise provided for in Section 15.2-2241 of the Code of Virginia. Such facilities shall not include sidewalks, special street signs or markers, or special street lighting in public rights-of-way not maintained by the department of transportation.

(Ord. No. 01-O-096, 10-16-01; Ord. No. 16-O-083, 9-20-16; Ord. No. 17-O-081, 11-21-17; Ord. No. 19-O-096, 7-16-19)

Note— Ord. No. 16-O-083, adopted September 20, 2016, provides an effective date retroactive to July 1, 2016.

As used herein, the terms "offsite proffers," "onsite proffers," "new residential development," "new residential use," "public facilities," public facility improvement," and "unreasonable proffer" shall have the same meaning as set forth in Section 15.2-2303.4 of the Code of Virginia as amended. The term "mixed use zoning" shall include mixed use and planned unit development zoning classifications.

(Ord. No. 16-O-083, 9-20-16)

Note— Ord. No. 16-O-083, adopted September 20, 2016, provides an effective date retroactive to July 1, 2016.

A.

Required information and statements. In addition to the information required for rezoning applications under section 16-102 above, every application for a conditional rezoning shall include, prior to final action by city council, a separate "proffer statement" in a form approved by the planning director and the city attorney. Such proffer statement at a minimum shall include the following information:

1.

Name and address of applicant(s).

2.

Name and address of owner(s).

3.

Name and address of agent(s).

4.

Description of subject property. The property description on the proffer form may be general. However, a legal description of the property must be attached. A copy of an appropriate deed or plat may be accepted at the discretion of the planning director.

5.

Description of the proposed rezoning, identifying the existing zoning district classification(s) on the subject property and the classification(s) being sought in the rezoning application. Where more than one zoning district classification is involved, the proffer statement shall describe generally the area to be encompassed by each different classification being sought. A plat may be attached to identify those areas.

6.

A description of the conditions being proffered. Such conditions may include, without limitation, the following: the construction of onsite and offsite improvements related to the subject property; limitations on uses, structures and arrangements of uses and structures on the subject property; limitations on densities; schedules or phasing of development; cash contributions or dedication of real or personal property for needed improvements; and conditions binding the owner(s) and successors to develop the proper schematic land use plan or other plans, profiles, elevations, demonstrative materials and written statements. The applicant(s) shall not proffer conditions required by the city as part of the subsequent subdivision or site plan review process. All proffered conditions, upon approval of the rezoning, shall become a part of the rezoning.

7.

A statement setting out that the named applicant(s) and owner(s), individually or by a duly authorized agent, are proffering, as a part and provision of the described rezoning, that the use and development of the property shall be in strict accordance with the described conditions and that those conditions shall constitute covenants running with the property and shall be binding upon the property and upon all parties and persons claiming under or through the applicant, the owners, their heirs, personal representatives, assigns, grantees and other successors in interest or title.

8.

A statement setting out that the applicant(s) and owner(s), for themselves, their heirs, personal representatives, assigns, grantees and other successors in interest or title, are voluntarily proffering the described conditions without any requirement by or exaction from the city or its governing body, and that neither the city, nor any of its officers, employees or agents required an unreasonable proffer as defined by state law. Excepting residential rezoning applications for which the applicant(s)/owner(s) submit a signed final proffer statement in accordance with Virginia Code Section 15.2-2303.4(D), the applicant(s)/owner(s) of all residential rezonings, including residential components of a mixed use zoning, shall certify for themselves, their heirs, personal representatives, assigns, grantees and other successors in interest or title that i) all proffers address an impact that is specifically attributable to the proposed new residential development or other residential use, ii) all offsite proffers address an impact to the following types of offsite public facility improvements: public transportation facilities, public safety facilities, public school facilities or public parks, iii) all offsite proffers address a need, or identifiable portion of a need, created by the new residential development or new residential use for public facility improvements in excess of existing public facility capacity at the time of the rezoning, which may be based on the projected impacts specifically attributable to the new residential development or new residential use, and iv) all offsite proffers have a direct and material benefit on the new residential development or new residential use.

9.

A statement setting out that the applicant(s) and owner(s) acknowledge that the city is in no way obligated to rezone the subject property.

10.

For new residential rezonings, including residential components of a mixed use zoning, a statement that the applicant(s) and owner(s) acknowledge that the proposed proffers address an impact that is specifically attributable to the proposed new residential development or other new residential use applied for, and that all offsite proffers, including cash proffers, are i) limited to the improvement of the following public facilities: public transportation facilities, public safety facilities, public school facilities and/or public parks, ii) address a need, or an identifiable portion of a need, for one or more public facility improvements in excess of existing public facility capacity at the time of the rezoning, and iii) each new residential development or new residential use receives a direct and material benefit from the proffer and that all such conditions are in conformity with the city's adopted Comprehensive Plan. Residential rezoning applications filed or amended after July 1, 2019 in which the applicant(s)/owner(s) submit a signed final proffer statement in accordance with Virginia Code Section 15.2-2303.4(D) are exempt from the requirements of this section.

11.

A statement that the applicant(s) and owner(s) acknowledge that, in the event the property is rezoned as requested, the conditions proffered shall continue in full force and effect unless or until they are modified by subsequent amendment to the zoning ordinance and that the applicant(s) and owner(s), their heirs, personal representatives, assigns, grantees and other successors in interest or title shall not be released from the responsibility of fulfilling and adhering to each of the enumerated conditions by virtue of any variance or other change in or to the zoning ordinance.

12.

For those conditional rezoning applications in which the proffered conditions include offsite proffers, including the dedication of property or the payment of money to the city for the purpose of contributing toward a public capital improvement related to the subject property, a statement setting out the following: (1) the proffer is voluntary and complies with all restrictions set out in state law, (2) the time or event at which the property or money shall be transferred to and owned by the city (or, where appropriate, by the school board or other public entity); (3) an acknowledgement that the improvements for which the property or money is being proffered are part of the city's overall program for capital improvements, even if not contained in the immediate five-year improvement plan; (4) a statement describing how the property or money is to be treated in the event the city or other public entity determines that it will not be able to use the property or money for the specific purpose intended; and (5) a statement that no unreasonable proffers were required by the city.

13.

A statement confirming that the proffer supersedes any and all previously submitted proffers.

14.

The notarized signatures of all of the owner(s) of the property, as well as the applicant(s).

B.

Soil tests and environmental site assessments. Where the applicant proffers the dedication of real property to the city or the Chesapeake school board, other than property to be dedicated for exclusive use as public right-of-way, the rezoning application shall include a written report containing the results of soil tests conducted by a qualified professional engineer and certified findings as to the suitability of the property for its intended use. The application shall also include a phase I environmental site assessment for the property. The director of planning, or designee, shall ensure that all city departments having an interest in the intended use of the property, including the Chesapeake School Board, receive a copy of the soil test report and the phase I environmental site assessment in a timely manner.

The soil tests and certified findings shall, at a minimum, address soil characteristics, environmental contamination, and other factors which may affect the suitability of the soil for the intended use, including, but not limited to the construction of buildings and structures, with or without the need for dewatering, soil replacement or special footings, foundations or slabs. The phase I environmental site assessment shall address the criteria in the Chesapeake Public Facilities Manual. If deemed necessary, the director of public works or designee may require a phase II environmental site assessment. The phase I and phase II reports shall include recommendations to address any and all adverse environmental conditions of the property, including without limitation, contamination of the soil, surface water or groundwater.

The director of the department of public works, or designee, and in cases where the real property is intended for school use, the Chesapeake School Board or designee, shall review all soil tests and environmental site assessments submitted as part of a rezoning application prior to presentation to the planning commission to determine the sufficiency of same based on relevant criteria such as the location, number and depth of soil borings and water samples taken.

C.

Format. Because all of the information required above must be included in one document for purposes of recordation and includes information otherwise required under section 16-102, the planning director, in conjunction with the city attorney, may develop specific forms for use by applicants to provide and coordinate the information required by this section and section 16-102 above.

(Ord. No. 98-O-056, 4-21-98; Ord. No. 05-O-130, 10-18-05; Ord. No. 16-O-083, 9-20-16; Ord. No. 17-O-081, 11-21-17; Ord. No. 19-O-096, 7-16-19)

Note— Ord. No. 16-O-083, adopted September 20, 2016, provides an effective date retroactive to July 1, 2016.

A.

Preliminary proffers. An applicant may voluntarily elect to submit proffers to the planning department as part of the original rezoning application or during staff review of the application; provided that written executed preliminary proffers, signed either by the agent, applicant or owner, are submitted to the planning department no later than the third (3rd) Wednesday of the month preceding the month of the public hearing at which the planning commission is scheduled to hear the application. The planning department shall distribute copies of the submitted proffers to the appropriate departments for review and comment prior to submission to the planning commission for hearing. In no event shall the city, its officers, employees or agents, suggest or request an unreasonable proffer as defined by state law; nor shall any proffer be required by the city, its officers, employees or agents.

B.

Changes to preliminary proffers. In the event an applicant wishes to add new proffers or make substantial changes to previously submitted proffers, the applicant must do so in writing no later than the third (3rd) Wednesday of the month prior to the public hearing at which the planning commission is scheduled to hear the rezoning. However, minor changes to previously submitted proffers may be made in writing up until noon of the day of the public hearing, provided that the planning director deems the minor changes to be clarifying or supplemental in content. In no event shall a change to offsite proffers be considered a minor change.

C.

Continuance required for substantial changes. If the applicant wishes to add new proffers or make substantial changes to previously submitted proffers after the third (3rd) Wednesday of the month prior to the planning commission hearing at which the item will be considered, then the applicant must request a continuance for this purpose. The planning commission may grant the continuance or elect to hear the application without the proposed new or substantially modified proffers. If a continuance is granted, the planning department and other affected departments shall review the new or substantially modified proffers and provide the planning commission with comments and recommendations.

D.

Action by planning commission.

1.

Where proffers are made for the first time at the scheduled public hearing or are modified in any manner at the hearing, the application shall be continued by the planning commission for review by the planning department and other reviewing departments to determine the impact of such proffers and whether they comply with existing laws, ordinances and regulations. Proffers so returned to the planning department for review shall be reviewed as though originally submitted to the planning department.

2.

Where no changes are made in the proffers submitted to the planning commission during the public hearing, the commission may take action on the rezoning application, recommending to the city council approval or denial of the application as submitted or recommending approval with the deletion of one or more of the proffers, or any portion thereof, in the application.

E.

Final proffers. If the planning commission takes final action on a conditional rezoning application, then the owner/applicant shall reduce all proffers made to the planning commission into a final proffer statement, in a form approved by the city attorney, and return the final proffer statement to the planning department not more than seven (7) calendar days after planning commission's final action for transmittal to city council. Failure of the owner/applicant to return the final proffer statement to the planning department within the required time may result in a delay in the application's consideration by city council. The director of planning shall consider the council's schedule and the appropriate use of staff in scheduling applications when there is a failure to return a final proffer statement within the required time.

F.

Modification of proffers after planning commission. An applicant may add to, expand, clarify or otherwise modify the proffers acted upon by the planning commission prior to or at the time of public hearing before city council. All such modifications shall be subject to the rules set out below:

1.

Onsite proffers modified and submitted within seven (7) days of planning commission action. If an applicant adds to, expands or clarifies the onsite proffers acted upon by the planning commission and, within seven (7) days after planning commission final action, submits a valid final proffer statement which contains such added, expanded or clarified onsite proffers, such modified application may be heard and acted upon by city council at its scheduled public hearing; provided that such added, modified or clarified onsite proffers are included in one or more forms of advertisement giving notice of the city council hearing. The added, expanded or modified onsite proffers shall be submitted to the city attorney, with copies to the planning director and city clerk. City council, at its discretion, may continue consideration of such modified application to a subsequent public hearing date or it may refer to modified application to the planning commission for review and recommendation in accordance with the preceding sections.

2.

Onsite proffers modified and submitted more than seven (7) days after planning commission action. If an applicant adds to, expands or clarifies the onsite proffers acted upon by the planning commission and submits a valid proffer statement which contains such added, expanded or clarified onsite proffers more than seven (7) days after planning commission action, city council shall take any one of the following actions:

a.

Council may decline to consider the modifications to the proffers as not timely filed and act upon the application which was acted upon by the planning commission, if it finds that the additional modifications do not alter the overall application sufficiently to warrant continued review or referral to the planning commission.

b.

Council may continue the hearing on the application to another hearing date, in which case the applicant shall be required to submit to the city attorney, with copies to the planning director and the city clerk, a final written proffer statement, signed by the owner and applicant, no more than seven (7) days after the date of the continuance, for city council to act upon the application with the modified proffers at its next planning public hearing date. Nothing herein shall limit council's discretion to continue applications to subsequent dates for further modification.

c.

Council may refer the modified application back to the planning commission for review and recommendation in accordance with the preceding sections.

G.

Referral of modified proffers to planning commission. If an applicant at any time modifies an application that has been reviewed and acted upon by the planning commission by deleting any substantive provision from any proffer, city council shall re-refer the application with such modified proffer to the planning commission for review and recommendation in accordance with the preceding sections. Notwithstanding in the foregoing, proffers or portions thereof may be deleted within the seven (7) days following the final planning commission hearing if necessary:

(i)

To correct clerical error;

(ii)

To bring the proffers into conformance with state and local laws governing proffers, or

(iii)

To bring the proffers into conformance with recommendations by the planning commission for the deletion of one or more proffers, or portion thereof.

(Ord. No. 03-O-074A, 6-17-03; Ord. No. 16-O-083, 9-20-16; Ord. No. 22-O-049, 5-17-22)

Note— Ord. No. 16-O-083, adopted September 20, 2016, provides an effective date retroactive to July 1, 2016.

A.

Adoption in whole or in part. The city council, when acting on an application for a conditional rezoning, may adopt the proffered conditions, in whole or in part. In no event shall the city council accept an unreasonable proffer as defined by state law.

B.

Recordation and notation of proffered conditions. Upon approval by city council of a conditional zoning application, the property subject to the conditional zoning shall be appropriately annotated on the zoning map and other appropriate land records to note that it is subject to conditions, and a copy of the proffer statement shall be recorded in the Chesapeake circuit court clerk's office. No development of the rezoned property may occur and no plans for development of the property may be approved pursuant to such rezoning until such time as such recordation has occurred. It shall be the responsibility of the applicant to ensure that recordation does occur.

C.

Conditional zoning index. The zoning administrator shall maintain and make available for public inspection a conditional zoning index in which the ordinance containing the conditions applicable to the property can be accessed.

D.

Proffered conditions as part of zoning regulations. The proffered conditions approved by city council shall become a part of the zoning regulations applicable to the property in question, until a subsequent amendment changes the zoning on the property covered by the conditions or changes the conditions applicable to the property and by its specific language nullifies conditions which are inconsistent with the new amendment or which are otherwise identified by the new amendment. All approved conditions shall continue in full force and effect until specifically nullified by subsequent amendment.

E.

Development in compliance with conditions. Upon approval of a conditional zoning, any subdivision plat, site plan 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. For the purpose of this paragraph, substantial conformance shall mean conformance which leaves a reasonable margin for adjustment due to final engineering data but which otherwise conforms to the nature of the development, the specific uses and the layout depicted by the plans, profiles, elevations and other demonstrative materials presented by the applicant.

F.

No waiver of other requirements in approval of conditional rezoning. All subdivision regulations which are part of Chapter 70 of the City Code and site development requirements which are a part of this zoning ordinance and of other applicable ordinances, regulations and policies shall apply to any site for which a conditional rezoning has been approved, and such rezoning shall not be construed as a waiver of any such requirements unless: (1) such waiver is specifically stated in the conditions made a part of the rezoning, and (2) the waiver is within the authority of city council to grant.

G.

Guarantee and bond requirements. City council, as a condition of approval of a conditional zoning application, may require a guarantee, satisfactory to the council, in an amount sufficient for and conditioned upon the construction of any physical improvements required by the conditions, or a contract for the construction of such improvements and the contractor's guarantee, in like amount and so conditioned, to ensure the timely completion of the proffered conditions. Such guarantee shall be reduced or released by the director of development and permits, upon the submission of satisfactory evidence that construction of such improvements has been completed in whole or in part. City council may specify in its approval of a conditional zoning the timing or circumstances under which such a guarantee requirement may be imposed. Upon a developer's written request for release from such guarantee, based upon the completion of the required improvements, the city shall respond within thirty (30) days of receiving such request. In the event that the city declines to release all or part of such guarantee, it shall specify the work that must be completed in order for such release to be granted.

H.

Denial of development for nonconformity with conditions. Any failure to meet or comply with any proffered condition of a conditional zoning for a piece of property shall be sufficient cause to deny approval of any development or permit applications, including but not limited to those for site plans and subdivision plats, and use, building and occupancy permits, which may be submitted for the subject property.

I.

Certain changes in zoning not to affect conditional rezoning where substantial dedications or cash contributions involved; other changes not affected.

1.

In the event proffered conditions include a requirement for the dedication of real property of substantial value or substantial cash payments for or construction of substantial public improvements, the need for which is not generated solely by the rezoning itself, then no amendment to the zoning map for the property subject to such conditions nor the conditions themselves nor any amendments to the text of the zoning ordinance with respect to the zoning district applicable thereto initiated by the planning commission or the city council which eliminate or materially restrict, reduce or modify the uses, the floor area ratio or the density of use permitted in the zoning district applicable to such property shall be effective with respect to such property unless there has been mistake, fraud or a change in circumstances substantially affecting the public health, safety or welfare.

2.

In all other circumstances, the approval of a conditional rezoning of property shall not affect the authority of the city council to so amend the zoning map or the text of the zoning ordinance in a manner affecting the uses, floor area ratio or density of use permitted on such property.

(Ord. No. 16-O-083, 9-20-16; Ord. No. 25-O-007, 2-18-25)

Note— Ord. No. 16-O-083, adopted September 20, 2016, provides an effective date retroactive to July 1, 2016.

A.

Zoning administrator. The zoning administrator 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 ensure compliance, including injunction, abatement or other appropriate action or proceeding.

B.

Appeals. Any zoning applicant or other person who has legal standing and is aggrieved, as defined by law, by a decision of the zoning administrator in interpreting, applying and enforcing the terms of a conditional rezoning pursuant to the provisions of this section may petition the city council for review of the decision of the zoning administrator. All such petitions for review shall be filed with the zoning administrator and with the city clerk within thirty (30) days from the date of the decision from which review is sought, and such petitions shall specify the grounds upon which the petitioner is aggrieved.