Title
Receive a presentation from staff about the Compact Communities Ordinance waiver provision and provide direction on how to process future waiver requests
Abstract
Introduction & Background:
The Compact Communities Ordinance (CCO) was drafted in advance of Briar Chapel in response to a desire from the developer for increased density above the minimum allowed at that time. The CCO is stand-alone ordinance, but is enabled by state statutes regulating zoning, subdivision, and watershed regulations and is also referenced in those ordinances (see Section 1, Enactment of the CCO). The CCO was adopted in April 2004 and included a waiver provision, and the full text of that section follows:
Section 15. Waiver. With the approval of the Board of Commissioners, the requirements of this ordinance may be adjusted, modified, reduced or waived based upon the absence of any reasonable relationship or nexus between the impact of the compact community development and the inclusionary or other requirements set forth herein.
The waiver provision has been used numerous times since the approval of the special use permit (SUP) for Briar Chapel using two different processes. The first time the waiver provision was used was during the original approval of the Briar Chapel SUP in 2005 and multiple conditions were added allowing for deviations from standards outlined in the CCO. In 2010 a new waiver process was approved by the Board of Commissioners wherein requests are allowed to be submitted directly to board without a public hearing, public notice, or review by the Planning Board. The following section will provide an overview of recent issues raised by the public about the waiver process and history of how this process has evolved.
Discussion & Analysis:
In 2024 and 2025 waiver requests were submitted to the Board of Commissioners requesting an alternative wastewater treatment option for a car wash within the footprint of the Briar Chapel SUP. Staff provided mailed notices to the adjoining property owners because the proposed impact was located within a perimeter buffer and another section of the CCO included a notification requirement for impacts on those buffers. Although the ordinance text spoke about reductions of perimeter buffers, staff thought it was best to provide notification. Ultimately, the waiver request was denied by the commissioners. A subsequent waiver was submitted to Commissioners in 2025 requesting another alternative wastewater treatment option and that waiver was ultimately not needed due to an interpretation of the CCO standards. Although there were no perimeter buffer impacts proposed with the second waiver request, staff provided mailed notice to the adjoining property owners out of an abundance of caution and for transparency. Many members of the public expressed concerns about the waiver process, that it didn’t provide adequate notice, and was detrimental to the public interest.
The waiver process outlined in Section 15 of the CCO has been used through two different processes; one is the special use permitting process and the second is direct submittal of a waiver to the Commissioners. The SUP process is a formal process that follows state statutory standards for quasi-judicial decisions including public notification (mailed, property posting, and legal ad), a public hearing, Planning Board review, and a final decision by the Board of Commissioners. The second process approved in 2010 was discussed at length during the July 19th meeting (see highlighted section of the attached minutes for more details starting on page 12). The request was submitted by the developer because several retaining walls had been constructed in no-build areas adjacent to riparian buffers and they didn’t want to be burdened by the SUP amendment process. The developer submitted the waiver request directly to the commissioners outside of the SUP process which is not provided for in state statutes. During the July 10, 2010 meeting, staff noted several concerns about allowing this type of process because there is no public notice, no public hearing, no recommendation from the Planning Board or staff, and no procedure. Additionally, there is no application provided with the direct submittal process because there’s no prescribed review process.
The wavier provision has been used through the SUP process and specific conditions have been added to the original and amended permit. The direct submittal of a waiver to the commissioners has occurred approximately 10 times since 2010.
Staff are bringing this item to the board’s attention so the board can re-assess whether the submittal of waiver requests directly to board, instead of as an amendment to the special use permit should continue for developments approved under the CCO.
How does this relate to the Comprehensive Plan: N/A
Budgetary Impact: N/A
Recommendation/Motion: Receive the presentation and discuss how to proceed with Compact Community Ordinance waiver requests.