DRAFT. City of Falls Church. Meeting Date:

1 2 DRAFT City of Falls Church Meeting Date: XX-XX-2011 Title: Ordinance To Amend Chapter 48, Zoning, Of The Code Of The City Of Falls Church, Virginia, In Order To Shift Authority For Review And Approval Of Drive-Through Special Use Permits From The Board Of Zoning Appeals To The Planning Commission And City Council (TO11-XX) Agenda No: Proposed Motion: MOVE to adopt (TO11-XX) on first reading; refer to the planning commission, architectural advisory board and the board of zoning appeals, for recommendations; and schedule second reading for XXXX XX, 2011. Originating Dept. Head: James Snyder, GM Dev. Services 703.248.5182 City Manager: Wyatt Shields 703.248.5004 City Attorney: John Foster 703.248.5010 Disposition by Council: CFO: Richard La Condre 703.248.5092 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST Council is requested to give First Reading, and refer to Boards and Commissions an Ordinance to Amend Chapter 48 of the Official Zoning Code of the City of Falls Church in order to move authority for the approval of special use permits for drive-through and drive-through facilities from the board of zoning appeals to review and approval by the planning commission and to the City council for final approval. This requires amending Sec. 48-172 Powers, Sec. 48-867 Regulations concerning specified conditional uses, and Sec. 48-1134 (Site Plans) when required. Council is further requested to schedule a public hearing and final adoption of this ordinance on XXXX XX, 2011. RECOMMENDATION Staff recommends that the city council adopt this ordinance to amend the Zoning Code on first reading, refer to boards and commissions for their comment and recommendation, and to schedule a public hearing and final passage for XXXX XX, 2011. BACKGROUND Summary Chapter 48 currently requires that an application for a special use permit for a drive-through or drive-through facility first be reviewed by the planning commission, who then makes a recommendation to the board of zoning appeals. The board of zoning appeals considers that recommendation and then makes the final determination on the application. In practice, this has led to a disjointed process for the applicant, who typically also has a site plan submission under review by the planning commission. By separating the approval for the drive-through permit from the site plan process, findings are issued by boards and commissions that frequently conflict with each other. By nature and by impact, a drive-through is a land use issue of a type

29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 typically reviewed by the planning commission, whereas the board of zoning appeals is charged with questions of dimension, such as setbacks. Staff is seeking to amend Chapter 48 to place review and approval of drive-through permits with other land use reviews already tasked to the planning commission, and move final approval to the city council. This is a more logical path for such applications to follow, and would also greatly simplify an applicant s burden by not requiring unnecessary multiple board and commission reviews. Methodology Staff recommends that these sections be amended as follows: 1. Amend Sec. 48-172(5) Special use permits by moving drive-through and drive-through facility review to Sec. 48-867. Reason: Sec. 172 is the code section that grants authority to the board of zoning appeals to approve special use permits, therefore, to enact the proposed amendment this section must be changed. Sec. 48-867 deals with use permits in general and is an appropriate place for assigning this authority as proposed. 2. Amend Sec. 48-867 to provide for planning commission review of drive-through and drive-through facility special use permits with final approval by the city council; add and revise restrictions on the locations of drive-throughs, see proposed Sec. 48-867(4)(d). 3. Amend 48-1134 to require a site plan for a drive-through or drive-through facility. 4. Revise the conditions that may be imposed on a drive-through plan and create authority for the planning commission and the city council to adjust these conditions. Zoning Code Text Change Analysis COMPREHENSIVE PLAN ANALYSIS: No impact FISCAL IMPACT: Minimal TIMING: Routine (TOXX-11) ORDINANCE TO AMEND CHAPTER 48, ZONING, OF THE CODE OF THE CITY OF FALLS CHURCH, VIRGINIA, PERTAINING TO DRIVE-THROUGH AND DRIVE-THROUGH FACILITY SPECIAL USE PERMITS. THE CITY OF FALLS CHURCH, VIRGINIA, HEREBY ORDAINS THAT Chapter 48, Zoning, of the Code of Falls Church, Virginia, be amended and reenacted as follows: ARTICLE III. BOARD OF ZONING APPEALS Sec. 48-172. Powers. In accordance with the chapter 17 of the City Charter, the board shall have the powers hereinafter set forth: (1) (4) no changes 2

75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 (5) Special use permits. a. With the exception of a drive-through and drive-through facilities, which shall be regulated as provided for in Sec. 48-867, tthe board shall have the power to hear and decide applications for such special use permits as are authorized by this chapter. ARTICLE V. SUPPLEMENTARY REGULATIONS DIVISION 1. GENERALLY Sec. 48-867. Regulations concerning specified conditional uses. Conditional uses specified in this section shall comply with the following regulations and with any other conditions stipulated by the board of zoning appeals, pursuant to section 48-172(5). Exception: Drive-through and drive-through facilities shall be subject to the review of the planning commission and city council subject to the regulations found in paragraph (4) of this section. (1) (3) No changes (4) All applications for use permits for a drive-through or drive-through facilities uses shall include the following: a. A written statement from the applicant describing the proposed use, giving all pertinent data, including specifically: 1. Type of operation. 2. Hours of operation. 3. Estimated number of patrons by a.m./p.m. peak periods and daily. 4. Proposed number of employees by shift. 5. Architectural and landscaping plans. 6. Litter control and recycling plans. 7. Air quality analysis and impact. b. A traffic study, addressing the following: 1. Nature of the product or service offered. 2. Method by which the order is processed or service provided. 3. Time required serving typical customer. 4. Arrival rate of customers. 5. Peak demand hours a.m./p.m. 6. Existing and projected road capacity and traffic conditions. 7. On-site parking requirements. 8. Anticipated vehicular standing necessary. 9. Trip generation by use type. 10. Pass-by patronage or capture rate. 11. Proposed internal and external flow. 12. Sight distance of ingress and egress points. 13. Pedestrian and bicycle access. 14. Any other appropriate public safety or site specific factors. Waiver of initial application requirements for use permits for drive-through and drive-through facilities. The zoning administrator, in consultation with the directors of planning and public works, may waive any submission requirement under this subsection, if deemed not necessary for adequate review of the application. The zoning administrator shall inform the planning commission and board of zoning appeals of waivers granted. The zoning administrator, the board 3

120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 of zoning appeals or the planning commission may require any submission requirements each deems necessary. (5) Applicants for use permits for drive-through facilities shall be evaluated based on the following criteria: a. Conformity to the master plan; b. Potential adverse effect on nearby neighborhoods and uses; c. Pedestrian safety and circulation impacts, with special concern for other uses in the vicinity, such as a school, place of worship, auditorium, theater or other places of assembly; d. Compatibility of architectural style with surrounding uses in form, materials, colors, scale, etc. In shopping centers an architectural style consistent with those established in the center; e. Adequate spacing in the area between the drive-through window and the public right-of-way; f. Appropriate hours of operation and impact on surrounding uses, with particular emphasis on effects on residential districts; g. Appropriate designation of any pedestrian accessway; h. Traffic circulation pattern for safe ingress and egress, as well as separation of uses; i. Clear delineation of drive-through aisles through the use of paving materials, pavement markings, and/or landscaping; j. Noise impact associated with, but not limited to, exterior speakers; k. Compliance with the Clean Air Act, and regional and local air pollution standards; l. Adequacy of landscaping and screening of vehicle use areas; and m. Other factors affecting the health, safety, and general welfare of the community, with particular emphasis on nearby residential neighborhoods. (Code 1982, 38-37; Ord. No. 987, 11-9-1981; Ord. No. 1477, 5-9-1994) 4. Applications for special use permits for a drive-through or drive-through facility shall be reviewed pursuant to the provisions of this section. a. The planning commission, after receiving the recommendations of the architectural advisory board, shall review the application and require such revisions or conditions it deems necessary in order to satisfy the intent of this section. The planning commission shall then recommend approval or denial of the application and submit its recommendation to the city council. b. City council shall, after consideration of the recommendation of the planning commission, shall have final authority on the application. In deciding to approve or deny the application, city council may require such revisions or conditions it deems necessary to satisfy the intent of this section. c. An application for a special use permit shall be reviewed with due regard to the nature and condition of all adjacent uses and structures, and the probable effect upon them of the proposed use. The review shall also take into account the proposed special characteristics, design, method of operation, effect on traffic conditions, or any other aspects of the particular use or structure. If the planning commission or city council should find, after hearing and considering the reports of the planning staff and the architectural advisory board, that the proposed establishment or use will not adversely affect the peace, health or safety of persons residing or working in the neighborhood, nor be detrimental to the public welfare or injurious to property or improvements in the 4

166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 neighborhood, but will be in accordance with the general purpose and objectives of the land use plan and other parts of the official master plan, and of this chapter, the planning commission or city council may authorize the issuance, by the planning director, of a special use permit. In those instances where the planning commission or city council find that the proposed use may be likely to have an adverse effect as above, the application shall be reviewed to determine whether such effect can be avoided by the imposition of any special requirements or conditions with respect to location, construction, equipment, maintenance or operation, in addition to those expressly stipulated in this chapter for the particular use. If such determination is in the negative, the permit shall be denied. If such determination is in the affirmative, the planning commission may recommend and the city council may authorize the issuance of a special use permit and shall stipulate the requirements or conditions. Further, the planning commission or city council may require that the conditions be indicated on an approved copy of the plans attached to the permit, or shall be recorded by such other method as may be appropriate. The planning commission may recommend and the city council may require satisfactory evidence and guarantee or bond that the conditions stipulated will be and will continue to be complied with. d. Additional conditions applying to drive-through or drive-through facilities. In addition to the requirements found elsewhere in this chapter, special use permits for drive-through and drive-through facilities issued by the city council after the effective date of this section shall be subject to the following conditions unless waived or reduced as provided for in section (d)(12) below: 1. The plan for a drive-through or drive-through facility shall be carefully evaluated to ensure that it poses no adverse effect on an R district. This evaluation shall include, but is not limited to, noise, traffic volume and lighting. 2. The minimum lot area for a building with a drive-through window shall be no less than 1 acre (43,560 square feet), with a minimum street frontage of not less than 200 feet. 3. A drive-through business window, service area, or vehicle stacking lane shall not be located within a required front, side or rear yard setback area. Where such a vehicle stacking lane, including the required buffer for the lane, abuts a residential Zoning district or park, the window, service area, or vehicular stacking lane shall be set back at least 50 feet from the property boundary abutting the residential district or park. 4. A drive-through window or menu board shall not be located on the front of any building, nor on the side of a building which faces a public street. Menu boards or other informational boards shall face away from public rights-of-way. 5. Drive-through lanes shall be delineated from drive aisles and parking areas with striping, curbing, landscaping, and/or the use of alternative paving material. Where pedestrian areas will intersect with a drivethrough lane, crosswalks shall be provided with striping and /or alternative paving material. 5

211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 6. A by-pass lane shall be provided adjacent to the drive-through lane or lanes, with a minimum width of 10 feet. No drive-through window or ATM shall be located on a by-pass lane. 7. Driveway curb cut. The distance between a public street intersection and a curb cut providing access to or from a parcel with a drive through shall be a minimum of 150 feet. 8. Noise Abatement. Plans shall include provisions for noise buffers to adjacent properties. A two-way speaker or phone may be used at the window or menu board provided it does not violate the provisions of the noise ordinances of the City. 9. Drive-through lanes shall be buffered against adjacent land uses according to the landscape buffering requirements specified elsewhere in this chapter. 10. Special Use Permits for a drive through are nontransferable. Unless specifically provided for by the conditions of a permit approved by the city council, or by the board of zoning appeals in the case of permits predating the adoption of this section, a special use permit for a drive through shall only be valid for the applicant for whom it was approved and cannot be transferred to a new occupant, nor shall a permit for one use be applied to another use, such as from a bank to a restaurant. 11. No portion of a drive aisle nor any of the standing spaces required for a drive-through, shall be covered by a roof, overhang, canopy, building or structure within 25 feet of an intersection with any of the following: a. a public right of way b. a pedestrian walkway c. a drive aisle 12. Exceptions to additional conditions. a. The planning commission may recommend and the city council may approve that the conditions set forth in Sec. 48-867(4)(d) 1-11 be waived or reduced if they are found to be unnecessary in order to satisfy the intent of this section. b. Drive-through or drive-through facilities that are substantially contained within a multistory building. The planning commission may recommend and the city council may decide that the conditions set forth in Sec. 48-867(4)(d) 1-11 may be waived or reduced to the extent the conditions are satisfied by the site plan for the multistory building in which the drive-through is contained. The intent of this paragraph is to anticipate circumstances where the multistory building, by the nature of its construction and site plan, has the impact of satisfying the conditions of Sec. 48-867(4)(d) 1-11. e. Initial application requirements. All applications for use permits for a drivethrough or drive-through facilities shall include a comprehensive written statement from the applicant describing the proposed use, giving all pertinent data, including specifically: 6

257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 1. Type of operation. 2. Hours of operation. 3. Estimated number of patrons by a.m./p.m. peak periods and daily. 4. Proposed number of employees by shift. 5. Architectural and landscaping plans. 6. Litter control and recycling plans. 7. A traffic study, addressing the following: 8. Nature of the product or service offered. 9. Method by which the order is processed or service provided. 10. Time required serving typical customer. 11. Peak demand hours a.m./p.m. 12. Existing and projected road capacity and traffic conditions. 13. Trip generation by use type. 14. Pass-by patronage or capture rate. 15. Proposed internal and external flow. 16. Any other appropriate public safety or site specific factors. f. Waiver of initial application requirements for use permits for drive-through and drive-through facilities. The planning director, in consultation with the zoning administrator, city engineer and the building official, may waive any application submission requirement found in Sec. 48-867(4)(e), if deemed not necessary for adequate review of the application. The planning director shall inform the planning commission of waivers granted. The planning director, planning commission and city council may require any additional submission requirements which they deem necessary to permit an adequate review of the application. g. Applicants for use permits for drive-through facilities shall be evaluated based on the following criteria: 1. Conformity to the master plan; 2. Potential adverse effect on nearby neighborhoods and uses; 3. Pedestrian safety and circulation impacts, with special concern for other uses in the vicinity, such as a school, place of worship, auditorium, theater or other places of assembly; 4. Compatibility of architectural style with surrounding uses in form, materials, colors, scale, etc. In shopping centers an architectural style consistent with those established in the center; 5. Adequate spacing in the area between the drive-through window and the public right-of-way; 6. Appropriate hours of operation and impact on surrounding uses, with particular emphasis on effects on residential districts; 7. Appropriate designation of any pedestrian accessway; 8. Traffic circulation pattern for safe ingress and egress, as well as separation of uses; 9. Clear delineation of drive-through aisles through the use of paving materials, pavement markings, and/or landscaping; 10. Noise impact associated with, but not limited to, exterior speakers; 7

302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 11. Compliance with the Clean Air Act, and regional and local air pollution standards; 12. Adequacy of landscaping and screening of vehicle use areas; and 13. Other factors affecting the health, safety, and general welfare of the community, with particular emphasis on nearby residential neighborhoods. h. Issuance and expiration of permits for a drive-through or drive-through facility. 1. A special use permit for a drive-through or drive-through facility may be authorized and issued for either a limited or an indefinite period of time, subject in any case to lapse if not implemented within one year from the date of approval by the city council, except as provided in subsections (h)(2) and (3) of this section, and shall be revocable by the city council upon formal request of the planning director or planning commission at any time for failure to adhere to the applicable conditions. Before revoking any such permit, however, the city council shall conduct a public hearing to receive and review such reports of staff and boards and commissions as it may require, and after giving the grantee at least ten days written notice of the time and place of such hearing. 2. Any special use permit for a drive-through or drive-through facility which has not been implemented within one year of issuance shall lapse and become void except as provided in subsection (h)(3) of this subsection. A special use permit for a drive-through or drive-through facility shall be deemed to have been implemented when substantial construction is started, if it related to construction of a building or facility, or when the certificate of occupancy is issued, if it related to a use involving no construction. 3. The planning director may, upon written application by the grantee, authorize one extension, for a period not to exceed 12 months, of a permit that has not been implemented within the initial one-year period, provided that the failure to implement has been due to causes beyond the control of the grantee and provided that the application for the extension is made within 90 days before the expiration of the initial one-year period of validity. i. Renewal of drive-through permits approved by the board of zoning appeals. Special use permits for a drive-through or drive-through facility that were issued by the board of zoning appeals prior to the adoption of this section shall be considered conforming uses and shall be permitted to continue subject to the conditions specified in the permit, if any. Applications for the renewal of such permits shall be made to the planning commission as provided for in this section, with the following exception: the conditions found in Sec. 48-867(4)(d)(1)-(11) shall not apply to permits that originated with the board of zoning appeals, provided those permits have not expired and are otherwise found to comply with the conditions contained in the permit being renewed. DIVISION 7. SITE PLANS 8

348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 Sec. 48-1134. When required. (a) A site plan shall be required for: (1) (5) No changes Insert after (5): (6) Drive-through or drive-through facility as defined in Sec. 48-2 and as regulated by Sec. 48-867 when: a. The application is for a new permit or for a permit that is not otherwise transferable from the permit holder to a second party. b. The application is for the renewal of an expired or expiring permit. c. The application is for the renewal of a permit that has been revoked. d. The application is not already part of a larger site plan. 1st Reading: 2nd Reading: Adoption: (TOXX-11) 9