Although the Town of Middleburg may be able to do virtually nothing to stop a developer’s plan to build a residential subdivision on farmland just outside the town limits, a recent vote to deny preliminary development plans have all but halted the process.
Following two hours of discussion Sept 23, the Middleburg Planning Commission voted 5-1-1 to deny a developer’s preliminary subdivision application, which shows the layout of a proposed 38-home development, called Banbury Cross Reserve, on 571 acres of land to the northeast of the town limits off Sam Fred Road. Commissioner Mimi Stein was absent and Councilman Kevin Hazard, the council’s liaison to the Planning Commission, voted against denial.
Although the entire property sits outside the town’s corporate limits, a majority of the proposed lots are within the town’s extraterritorial subdivision control area—land that, under Virginia law, falls under the purview of not only county regulations, but also under the town’s subdivision ordinance if it’s located within one mile of the town limits.
The commission voted to deny the application claiming the developer, Middleburg Land 1 LLC, had not provided the town and county with its preliminary plans for fire protection; a survey of all trees at least 18 inches in caliper on the property; revisions to certain road widths that are necessary to meet the required design for the county’s Fire Apparatus Access Roads; identification of two archaeological sites found on the property; identification of certain floodplain boundaries; and acknowledgement that the developer will provide an at least 14-foot-wide public access easement along the proposed development’s Rt. 50 frontage to make way for the county’s planned 10-foot-wide shared-use path along the highway between Middleburg’s eastern limits and Snickersville Turnpike.
But denying the application could have negative legal repercussions for the town.
Deputy Town Administrator Will Moore emphasized that since the developer’s application was in general compliance with the town’s subdivision ordinance and the county’s zoning ordinance, the Planning Commission was obligated to approve it without a subjective discussion around whether individual commissioners were in favor of or opposed to the development.
“We are forbidden from trying to make a land use policy decision at the subdivision stage—we are making a ministerial act,” Moore said. He said it was not legal to deny the application on grounds of personal opposition to the proposed development.”
Moore said that while it wasn’t his job to defend the applicant, it was his job to try to “steer the town clear of legal exposure to some point.”
On multiple occasions during the meeting, he urged the commission to approve the application because the town had “made favorable findings … in terms of substantial conformance with the technical requirements.”
The developer has two options now that the town has denied its application—resubmit at any time or sue the town in Circuit Court.
Andrew Hertneky, the manager of Middleburg Land 1 LLC, declined to comment on the Planning Commission’s vote or his plans moving forward.
Hertneky’s plans include an option to build the project using a more compact cluster option allowed by the county’s Agricultural Rural 2 zoning district, at a density of one lot per up to 15 acres with at least 70 percent of the land area set aside for rural economy lots, common open space or a combination of both.
The proposal is to create 28 cluster lots in the southwestern corner of the property that range in size from about 2-4 acres and 10 rural economy lots ranging in size from about 25-70 acres. Hertneky has also proposed to set aside an additional 67 acres for five open space lots. According to a staff report, the development can be served by individual wells and drainfields.
Hertneky has suggested there could be four entrances along Sam Fred Road, with two for the 28-home cluster area and two farther north along the road to serve the 10 rural economy lots.
The initial development plans weren’t received well by residents during Monday’s meeting.
Mayor Bridge Littleton read a letter from state Sen. Jill Vogel (R-27), who requested the Planning Commission to urge the county to delay action on the application until further studies are completed and the county initiates an update to the AR2 zoning district’s cluster subdivision regulations to “help combat these forms of suburban growth in our rural areas.”
Littleton echoed Vogel’s comments, noting that the county’s clustering option “needs to be changed.”
“It will slowly … erode the open spaces we have,” he said.
Resident Brad Bondi, an attorney, urged the Planning Commission to vote against the preliminary application because, he said, it was “deficient on its face.” He pointed out that, while the property rests on historical ground where Revolutionary and Civil War soldiers walked and where Native Americans and slaves lived, the developer did not provide the town and county with an archeological study.
Piedmont Environmental Council Field Representative Evan McCarthy backed Bondi’s statement up by noting that, according to the Virginia Cultural Resource Information System, there are 14 recorded historic archeological sites with three miles of the property and 341 architectural resources within one mile.
Bondi also said the developer’s hydrogeologic study did not show the proposed development’s impact on neighboring lands and that it also did not provide the town and county with a study showing the proposed development’s impact on the surrounding wetlands.
“This is more than a technical deficiency. This is a real deficiency and the applicant has not met its obligation,” he said.
Laurie McClary, a lifelong Middleburg resident, said “there is nothing that says ‘welcome to historic, rural, tradition-steeped Middleburg village’ like cluster housing.”
“I think it is the antithesis of all that you all have worked very hard to protect,” she told the Planning Commission. “Because it is by-right does not mean it’s God-given.”
Gem Bingol, the Piedmont Environmental Council’s representative in Loudoun and Clarke counties, pointed out that Banbury Cross Reserve was the first major subdivision application located in the county’s AR2 zoning district southwest of Snickersville Turnpike to move forward in at least 10 years and that if the 38 homes do eventually go in, it could set a precedent for future developments in the area.
In all, 23 residents voiced their opposition to the proposed development and urged the commission to not vote on approval of the preliminary plans. No one spoke in favor of the proposed development, although representatives from Middleburg Land 1 LLC were present.
Moore said that while he doesn’t expect Hertneky’s company to sue the town, he is “always concerned about potential legal exposure with regard to development applications” and that the commission’s vote of denial “is what it is now.”
Moving forward, county staff will need to approve or deny Hertneky’s preliminary application.
County Public Affairs and Communications Officer Glen Barbour said the county staff is expecting Hertneky to address the comments that the town, county and VDOT made on his first application and resubmit. He said the staff at that time would re-evaluate the application to determine its conformance with county regulations.
Even if the county does approve the application, though, Hertneky will still need to get the town’s approval to advance his development plans.