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The Arlington County Board will be deciding whether to approve a series of amendments to Arlington's Comprehensive Plan relating to Crystal City at their hearing at the end of September, after several years of evaluation on how best to react to the loss of approximately 17,000 jobs and over 4 million square feet of occupied office space due to the recommendations of the Base Realignment and Closure Commission (BRAC).  Specifically, the County Board will decide whether to adopt the new Crystal City Sector Plan 2050, and modify the General Land Use Plan and the Master Transportation Plan.

With Long Bridge Park and the Pentagon to the north, the airport and the river to the east, Aurora Highlands and Pentagon City to the west and Alexandria/Potomac Yards to the South, existing metro and VRE access, Crystal City seems well poised to make a comeback.  Here is an exhibit showing Crystal City's existing conditions.  The plan specifically outlines which sites are expected to be redeveloped, which sites have potential for redevelopment, and which sites are expected to remain for the life of the plan (click here for the comparison). Much like the Tyson's Corner Plan, Crystal City's 260 acres are broken up into proposed "districts" (shown here), including the Northwest Gateway, Northeast Gateway, Central Business, Entertainment, South End and West Side Districts, each with their own respective district-level focus.

The areas planned for the highest densities are basically limited to certain principle areas, including the sites in proximity to the planned multimodal transit hub facility and also those sites a the center of the Entertainment District.  The "Base Densities" referenced in the plans show what the existing GLUP designations contemplate for density, and are shown on the Base Density Map.  The plan models a 61% increase in density for Crystal City over the life of the plan, but rather than calling out specific densities caps for specific sites, density under the Crystal City Sector Plan will be controlled by bulk restrictions, shown on plans for height, setbacks, bulk angles, tower coverage, massing, etc.  Land use is set forth on the plan's new Land Use Map, and required on-street retail space is shown on the Retail Frontage Map.

Of particular interest in the plan is the "...addition of a dedicated surface transit-way to Crystal City's existing [transit] system...," that will include a streetcar or trolley system.  The recommended alignment for this system is shown here, as well as a new eastern entrance to the Crystal City Metro Station.  A multi-modal transfer hub facility (shown here) is planned to connect metro, VRE, bus and trolley systems at the location of the existing entrance to the Crystal City Metro Station.

One of the most unique things about Crystal City has always been the Crystal City Underground which connects a lot of Crystal City for pedestrians via a network of tunnels, underground and interior  spaces.   While the plan guides how retail, pedestrian systems and planned open space will make use of these existing features, most of the Underground is contemplated as remaining in place.

The Crystal City Sector is also going to be one of the proving grounds for Arlington's currently developing Community Energy Plan, with carbon reduction and sustainability as some of the major plan objectives, as well as incorporating the proposed streetcar/trolley system's energy needs in Crystal City's district energy plans.

All said, it is a fairly extensive and unique plan, and I don't think a simple blog posting can do it justice.  For those of you that want all the details, here's a link to the entire proposed plan and the staff report for the September hearing.

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I attended the meeting last Wednesday night regarding the impact of Arlington County's Community Energy Plan on the Arlington development community, held by the County's lead consultant, Peter Garforth, of Garforth International, Jay Fissette, the Chairman of the Arlington County Board, and numerous industry representatives.  I initially blogged about this several months ago (see the post "From Ad Hoc Incentives to a Comprehensive Community Energy Plan") when the Arlington Community Energy and Sustainability Task Force began to develop a forty year energy plan for Arlington County.  It is now unofficially official that the end goal of the task force is to create a new, additional component to the County's Comprehensive Plan to be implemented during the various local land use/special exception processes.  It will therefore have major impacts on the development and capital projects industries, as well as a number of utility companies.

The plan is modeled after a number of plans already implemented and apparently successful elsewhere, such as Copenhagen and the City of Guelph, which have been able to identify and align both short-term and long-term energy goals.  We are told the currently unreleased draft plan considers the following:

• Concepts for "district energy" systems,
• Reshaping infrastructure for localization of systems,
• Use of cogeneration systems,
• Goals to reduce the County's carbon footprint (possibly up to as much as 50%),
• Continuation of an emphasis on efficient building design,
• Smart/monitored metering, and
• Public and private investments.

It also sounds like they contemplate this new shared infrastructure possibly being owned, operated and maintained by an independent, third party entity.  Clearly, shared systems and involving a third party entity/owner will make development substantially more complicated from a lot of different perspectives.  Hopefully, however, adequate time is given to consider what kind of incentives/benefits may be available to help private entities hedge or offset some of the risks until these practices become normalized.

I've asked for a copy of the PowerPoint presentation Peter made which outlines a number of these points and I'll post it as soon as I get it.

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We have finally reached the last of the five cases from December’s Case Watch with the Virginia Supreme Court’s recent decision in Advanced Towing Company, LLC, et al. v. Fairfax County Board of Supervisors, Record No. 091180.

Virginia Code Section 46.2-1232 (A) allows localities to regulate towing of trespassing vehicles by ordinance, but is silent on the mode or manner of how to carry out that authority. The last sentence of Section 46.2-1232 provides that if a vehicle is towed from one locality to another, the local ordinance of the locality from which the vehicle was towed governs, if that locality has an ordinance.

Fairfax County took advantage of its discretion to have an ordinance regulating the towing of cars, and passed Section 82-5-32, which contains the following language in Subsection (e):

Every site to which trespassing vehicles are towed shall comply with the following requirement: (1) A tow truck operator must tow each vehicle to a storage site located within the boundaries of Fairfax County….

Three towing companies – Advanced Towing in Arlington County, Roadrunner Wrecker in Loudoun County and King’s Towing in the City of Fairfax – got together to challenge Section 82-5-32 (e). The towing companies each had property management clients within Fairfax County, but Section 82-5-32 (e) exposed them to prosecution for towing vehicles to their storage lots outside of Fairfax County. The companies argued that Section 82-5-32 (e) unfairly discriminated against towing companies outside of Fairfax County and favored companies inside the county, with no rational basis for that discrimination. They also argued that the ordinance ran afoul of the Dillon Rule, exceeded the county’s authority under 46.2-1232.

Regarding the Equal Protection argument, the parties agreed that the ordinance did not involve a suspect classification or fundamental constitutional right, so the “rational basis” test applied. The towing companies argued that forcing them to store the cars in Fairfax County was irrational because their storage lots are located within five and a half miles of Fairfax County, and allowing them to tow vehicles to those lots would better serve the public. Fairfax County justified the territorial limitation by arguing that Section 82-5-32 had many provisions for safeguarding towed cars, such as nighttime illumination, fencing and posted signs. Under the last sentence of Virginia Code Section 46.2-1232 (A), if a car was taken from Fairfax County and towed to a different locality, Section 82-5-32 controlled, creating a regulatory nightmare for Fairfax County. The trial court and the Virginia Supreme Court agreed that Fairfax County’s argument provided a rational basis for the territorial limitations in Section 82-5-32.

Regarding the Dillon Rule argument, the towing companies argued that the ordinance went beyond the power conferred on the localities to regulate towing vehicles under Virginia Code Section 46.2-1232. The trial court and the Virginia Supreme Court once again sided with Fairfax County. The ordinance allows localities to permit vehicles to be towed outside their borders, but did not compel the localities to do so. Nothing else in Section 46.2-1232 mandated where vehicles are to be towed. The Court concluded that localities can exercise reasonable discretion in setting territorial limits regarding where towed vehicles may be stored without running afoul of the Dillon Rule.
 

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The area considered to be inclusive of Fort Myer Heights is basically the down-hill slope from Arlington's Courthouse Sector on the hill above of Route 50 north of Fort Myer, bounded to the north by Clarendon Boulevard and to the south by Route 50, Courthouse Road to the west and Pierce Street to the east.  What makes this area interesting, however, is the plan adopted by Arlington County to try and preserve the area's dwindling stock of aging garden-style apartments, which many find valuable from a historical perspective and others find valuable because of the affordability of these units (whether committed affordable units or as market affordable units).  The County has been unable to prevent the redevelopment of a number of sites in this area because planned densities are not sufficient to induce developers from entering special exception processes, and have instead chosen to move forward with by-right townhouse and condominium projects, effectively omitting the County from the redevelopment process.

In an effort to stem the flow of this trend, the County identified which blocks in the plan area had been assembled and when they were originally constructed to determine which sites were at the highest risk of redevelopment.  Recognizing the likelihood of being left out of the redevelopment process and the inability to preserve certain units without having to buy them, through the Fort Myer Heights North Plan, the County has attempted to incentivize certain strategic sites with higher densities in order to preserve the existing nature and affordability of the area.  To do this, the Concept Plan identifies the northern portion of the plan area as a Conservation Area and identifies the southern portion of the plan area as a Revitalization Area being "...a location for a strategic blend of conservation and redevelopment..."  Also, in case you are interested, the plan has prioritized which sites are the most historically important.

For sites in the Conservation Area, the idea is to not allow any additional density beyond what is allowed by-right, and instead to allow the transfer of development rights (or "TDRs") for historic preservation, affordable housing and open space purposes (for more on TDRs click here and here), pursuant to a series of specific formulas set forth in the plan.  Receiving Sites for TDRs may either be located within the Revitalization Area or outside of the plan area.  Note that there a number of ongoing, perpetual duties to maintain and rehabilitate historic buildings required to allow the transfer of density off of these sites.

Targeted redevelopment is permitted in the Revitalization Area, but to maintain the nature of the plan area it is limited to residential and neighborhood retail uses.  New construction may be permitted at targeted sites up to 3.24 FAR (and may exceed this cap under certain circumstances) through the County's unique 4.1 Site Plan process if the community benefits outlined in the plan are achieved (here's the Density Plan that sets forth the location of these sites) subject to certain height limitations.  Note, however, that the plan contemplates that as much as 20% of any transferred GFA could be required to be committed affordable housing.  It is unclear how this would be reconciled with a Receiving Site going through the 4.1 Site Plan process, which would still be subject to the County's Affordable Dwelling Unit Ordinance requirements.  In the Fort Myer Heights North Special District, it looks like these contributions will be expected to be cumulative.

Sound like a plan that is adequately incentivized?  By way of comparison, here's the massing for the existing conditions, the by-right scenario, and the 3.24 FAR scenario.

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We are very pleased to have another colleague writing for us today.  Jon Kinney is a highly regarded land use and real estate law expert with our firm.  Jon brings us commentary on changes coming to Arlington County's planning for the East Falls Church area in Northern Virginia.

In anticipation of the opening of Metro’s Silver Line, the Arlington County Board established the East Falls Church Planning Task Force to consider key planning issues in East Falls Church, including height and density, land uses, urban design, affordable housing, transportation improvements, open space and environmental sustainability in the East Falls Church area.  The East Falls Church Planning Task Force completed its comprehensive review of the East Falls Church study area this week and forwarded its recommendations to the Arlington County Planning Commission and the Arlington County Board which are both scheduled to take up the issue in a few weeks.

The Task Force recommendations include:

• Mixed use development. The Task Force is encouraging a balance between residential, retail, office and hotel uses in East Falls Church. Building heights are generally limited to four to six stories with the exception of the site immediately next to the Metro station where nine stories are permitted provided heights are maintained at four stories along Washington Boulevard.
• Transition to surrounding single family area. Future development should be designed to respond to the existence of single family and townhouse neighborhoods in the immediate area.
• Open Spaces. The Task Force recommendations include creating a new public space at the heart of East Falls Church at Lee Highway on the western side of Route 66 and a large pedestrian plaza as part of any development of the Metro station site.
• Bicycle and Pedestrian connections to the Metro. An important element of the work of the Task Force was enhancing the pedestrian and bicycle network to the Metro station. East Falls Church is one of the most heavily used bicycle-oriented Metro stations and efforts were made to meet current and future bicycle demand.
• Elimination of commuter parking. An import aspect of the Task Force’s recommendation is the elimination of commuter parking in any future development of the Metro station site.

The Task Force also made decisions regarding affordable housing, quality architectural design and more efficient use of transit at the Metro rail station.  The actual heights and densities in the plan differ only slightly from the existing Arlington County Land Use Plan; in a few cases the recommendation provide less height and/or density than currently permitted.

An important feature of the Plan is an attempt to create a western pedestrian Metro rail entrance in order to bridge the gap in the community caused by the construction of I-66. The Task Force is proposing four separate options to provide pedestrian access from the west side of I-66 to an expanded Metro platform in the middle of I-66  (please see graphic below). The cost associated with this proposal may delay it’s implementation at least until the redevelopment of the Metro site.

Representation of both the Virginia Department of Transportation (VDOT) and Metro were on the Task Force. VDOT indicated that it has no plans to sell and/or ground lease its land next to the Metro station. Because VDOT owns most of the land located at the East Falls Church Metro station, no major development can occur on this site without their agreement.

Copies of the East Falls Church Task Force recommendations are available on the County’s website.

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I know most people out there who follow land use in the DC metro area are pretty familiar with the Columbia Pike Revitalization Plan and the Columbia Pike Form Based Code.  Then, like many others, you've probably wondered what will happen to the trolley system once Columbia Pike hits the Arlington County line?  Well, instead of continuing to head west down the corridor, it abruptly bangs a left at the county line, and heads south up the hill to Skyline (here is a transit plan showing approximate station locations and here is an aerial transit plan overlay).

Actually, this is in conformance with the transit plans that have been in place for several years now, so it is no great shock to see this concept on the "Preferred Plan" which is the latest culmination of two prior land use plans presented to the community last month and updated and posted yesterday on Fairfax County's website.  Not surprisingly, the highest densities are planned along the proposed street car system, which culminates at the existing high density sites at Skyline.  As you can see on the Preferred Plan, however, the system only tracks the eastern periphery of this first portion of the Community Business Center plan area (the "CPC"), leaving much of the planned area geographically disconnected from the trolley system, and in particular the Columbia Pike corridor.

So rather than seeing higher densities planned along the Columbia Pike Corridor as might be the intuitive preconception, right now the idea is to concentrate higher densities in Land Unit C between Leesburg Pike and South Jefferson Street, with street car stations straddling both the north and south sides of Leesburg Pike on Jefferson Street.  Adjacent to the conceptual transit center and and station north of Leesburg Pike is where the highest density mixed use sites and the high density retail nodes are proposed to be located under this portion of the CPC.

While this is a revitalization plan for the Baileys Crossroads area rather than an extension of the Columbia Pike Revitalization Plan into Fairfax, it does seem, at least initially, counter-intuitive to connect the old Skyline density to the planned Columbia Pike transit corridor.  But life is not perfect, and Fairfax has to deal with the existing, built densities at Skyline, and probably needs to take advantage of the new transit system now  to alleviate some of the immediate conditions at Skyline.  I just wonder if it would not be more wise to take a longer view and realign the density and transit capability up Columbia Pike rather than focus on connecting the aging density at Skyline.  I also have to admit though, it is pretty exciting to think of Pentagon City and Skyline being connected by a street car system.

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For those of you that follow our blog who are familiar with land use planning in Virginia, I'm sure you already know that localities are required by the Code of Virginia to create and adopt a Comprehensive Plan.  Typically, a Comprehensive Plan contains a land use plan component, a transportation plan component, various engineering plans, and open space plans, among other things.  Makes sense right?  It is common sense that localities should plan the build-out of their communities in a logical manner, taking into considerations planned densities and uses, necessary transportation systems, and the infrastructure to support everything.

Up until now in Virginia, however, promoting efficiency in energy use and encouraging other sustainable design elements have been accomplished pursuant to ad hoc incentive programs for new construction, and almost universally applicable as part of the public negotiation process for special exception approvals, such as committing to certain USGBC LEED certification levels, etc.  This has resulted in a spattering of improvements to individual buildings and site designs throughout localities in Virginia.  Anybody with a background in engineering knows, however, that a city or county is not just a bunch of separate, distinct buildings, but rather is a large, connected system made up of all of the various components that make localities tick, such as water, sanitary sewer, storm water, communications, electrical and gas systems, etc., etc.  While commercial buildings are a major user of these systems and resources, localities up until now have focused on the users of the systems, rather than focusing on a comprehensive analysis and plan for the entire system.

Well, Arlington County may now be doing just that, and at the direction of Chairman Jay Fisette, has created the Community Energy and Sustainability Task Force to guide the development of a "Community Energy Plan" for Arlington County.  The purpose of the Community Energy Plan is to take a holistic look at the County's energy use from a systemic perspective, and to establish a plan to achieve specific goals for the County, rather than just focusing on improving the County's energy efficiency on a building by building basis (although individual building and site design incentives will remain). 

I could be wrong, but I believe Arlington County is the first locality in Virginia to do this.  It is unclear at this early stage whether the end result Community Energy Plan will become a component of the County's Comprehensive Plan or a separate, stand-alone policy, however, as we've seen before, Arlington might be the setting the next trend in Virginia, provided that localities actually have the authority to do this.  I cannot imagine this will not have an impact on the public negotiation process for new development - building and site design, components, etc. may very well be part of broader public systemic goals in the future.  To what extent at this point, though, is hard to say.  It is also certainly likely to have a broader impact on Virginia's public service corporations.

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Back to another of the cases highlighted in Case Watch: Upcoming Virginia Supreme Court Opinions. In Schefer v. City County of the City of Falls Church, the Virginia Supreme Court was confronted with a 2006 amendment to a Falls Church ordinance that specified different building height requirements for one-family dwellings in the same zoning district.

Schefer owned twelve lots in Falls Church, all of which were zoned R1-B, a medium-density residential district. The minimum lot area requirement for one-family dwellings in the R1-B district is 7,500 square feet. Schefer’s lots were less than the minimum of 7,500 square feet, but had been lawfully created prior to that requirement, and were designated as “substandard lots.” For substandard lots, the maximum building height for “residential use” on all R1-B lots was the less of 35 feet or two and a half stories.

In 2006, Falls Church adopted Zoning Ordinance 1799, amending permissible height and yard set-back requirements for one-family dwellings of substandard lots. Ordinance 1799 created a formula for calculating the allowable building height of one-family dwellings on substandard lots within residential zoning districts, resulting in an allowable building height between 25 and 35 feet depending on the size of the lot. The maximum height for one-family dwellings on standard lots in R1-B districts remained 35 feet.

When Schefer discovered that Zoning Ordinance 1799 changed the maximum building height for one of his lots to just over 28 feet, he filed suit against Falls Church, claiming that Ordinance 1799 violated Virginia Code Section 15.2-2282’s uniformity requirement and the Equal Protection Clause.

The Court had no problem rejecting Schefer’s arguments and siding with Falls Church. Looking at the plain language of Section 15.2-2282, the Court pointed out this section is taken verbatim from the Standard State Zoning Enabling Act, except for the addition of the word “uses.” In full, Section 15.2-2282 reads:

All zoning regulations shall be uniform for each class or kind of buildings and uses throughout each district, but the regulations in one district may differ from those in other districts.

To make his argument under Section 15.2-2282, Schefer claimed that one-family dwellings constituted “buildings and uses” that required identical building height requirements. The Court rejected that argument, concluding that this case turned on two kinds of uses – residential use on standard lots and residential use on substandard lots.

The Court gave very short shrift to Schefer’s equal protection argument. Before reaching this issue, the Court noted that Section 15.2-2282’s purpose is to ensure that zoning regulations are not discriminatory, acting as a “statutory reaffirmation” of equal protection. Under its equal protection analysis, Ordinance 1799 was presumptively reasonable, with Schefer carrying the initial burden to show it was unreasonable. Schefer tried to avoid shouldering this burden by arguing that Ordinance 1799 was facially discriminatory, but the Court refused to allow him to escape his burden of proof because there was nothing inherently suspect about Ordinance 1799 and it did not infringe on the exercise of any fundamental right.

Two more highlighted cases remain. In TIR Connail Properties, L.C. v. 2401 Wilson, LLC, we have yet to see whether the Virginia Supreme Court will say that the plaintiff should have been allowed to sue using its trade name, and what the Court will do about the scope of use of discovery deposition testimony. In Advanced Towing Company, LLC, et al. v. Fairfax County Board of Supervisors, we’ll find out whether the Court agrees with the trial court regarding the Dillon Rule and the doctrine of ultra vires. Stay posted!
 

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If you are an owner or operator of affordable rental housing (property with four or more units), it might be worth noting that the General Assembly has just restricted your local real estate tax assessor's discretion to value your property to one method.   Senator Whipple, apparently at the request of the Virginia Housing Commission, patroned a bill passed by both houses this session to amend Section 58.1-3295, requiring localities to assess real property being operated as affordable rental housing solely via the income valuation approach.  Presumably, the reason for this was that local assessors have been trying to tax committed affordable rental housing (i.e. housing that is legally bound to remain and operate as affordable housing at limited rents), at rates that do not reflect these income stream restrictions, by using methods to determine fair market value other than the income approach.

In a nutshell, before this amendment, a local assessor could assess real property three different ways:

1. The Sales Comparison Method, or "Market Approach;"
2. The Replacement Cost Less Depreciation Method, or "Cost Approach;" and
3. The Capitalization of Income Method, or "Income Approach."

Additionally, when dealing specifically with affordable housing, after application made by the owner, assessors were required to consider:

1. The impact of any legally imposed rent restrictions;
2. Any additional operating expenses associated with affordable housing compliance requirements; and
3. Any legally imposed restrictions on the transfer of title or other restraints on alienation.

Assessors were also expressly prohibited from attributing the value of affordable housing tax credits to affordable housing sites.

So, basically, assessors will still be required to take into account the special affordable housing valuation factors listed above, but will now be required to only use the Income Approach in determining fair market value.  Well, the policies involved being fairly apparent, we just have to wait and see whether local assessors will decide whether they think they need to obey this new valuation as prescribed by this amendment, or whether they may disregard it.  In any event, it may be worth looking into how your local assessor is currently determining the value of your affordable housing inventory.

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In what appears to be an effort to allow localities to provide additional incentives to redevelop certain areas or sites, both houses of the General Assembly have voted to modify Section 15.2-2316.2 of the Code of Virginia, better known as the "TDR Statute" (inclusive of Section 15.2-2316.1 as well).  Previously, transferable development rights ("TDRs") severed from a "sending" site or area could only be equal to the TDRs permitted to be attached to the "receiving" site.  The modification now allows TDRs transferred to receiving sites to be greater than those severed from the sending sites. 

I have to admit, you can read this modification to mean a number of things.  If localities are smart, they could really use this modification to their advantage.  Read one way, this could allow localities an additional method to encourage owners of transferable development rights to transfer their density to sites that are less favorable from a business standpoint but more favorable from a planning standpoint.  It arguably provides localities with the ability to prioritize which sites should receive density through what amounts to a receiving site bonus density program.   It also could potentially allow the regulation and/or balancing of the TDR market because the locality now has what appears to be the additional ability to control market demand of TDRs (i.e. if the market has 15,000 SF of density available for sale, and only 8,000 SF worth of receiving site density permitted, market price for TDRs will be lower than if the ratio is reversed). Localities arguably now have more ability to control the supply and demand for TDRs.

As anyone in the land use racket can see, this is a significant amendment to the TDR Statute, and, as always, the political nuances of who will eventually benefit in any given locality will be interesting to follow.  It is certainly another tool in the planning toolbox localities should not ignore, and of which owners and developers should be aware.   If you want to read more about TDRs, click here.

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Can you imagine going to your local zoning office, asking for a formal determination from the Zoning Administrator as to whether you are permitted to build a building on your property, receiving a formal written determination that you may do so legally, providing the written opinion to your bank who then provides the financing, then paying for and constructing the building, only to be notified thereafter by the locality that they have either changed their mind or have decided to rezone your property without your consent in the interim?  You complain that you were told by the locality that you could build the building, but all you get is "Sorry, we've decided you can't do that after all."

Does that stick in your craw?  It should, and local officials flopping or waffling over their prior decisions happens, to some degree or another, more frequently than some might think in localities all over our Commonwealth.  Well, you can stop clearing your throat and loosening your tie because the General Assembly voted this past Monday (House 92 to 4, Senate 40 to 0) to make Zoning Administrators more accountable for the decisions they make - decisions on which private citizens must rely.  HB 1250 passed, and it modifies Section 15.2-2307 of the Code of Virginia to provide that formal determinations made by Zoning Administrators, after the requisite appeal or modification period has run, shall be considered "significant affirmative government acts" (aka "SAGAs") if a private party has relied upon a SAGA to the requisite extent.

Our colleagues at Sands Anderson down in Richmond and Beth Wellington blogged earlier this week that allowing private citizens to rely on a formal opinion by the Zoning Administrator (that person holding the statutorily designated office to make such determinations), might somehow allow private property owners to rezone their property "in the dark," or gain some other advantage outside of the public eye.  Yes, it is true that a Zoning Administrator has the sole authority to make a formal, binding determination of what a parcel of land's current zoning classification allows; however, that is in fact the total extent of that authority.  A Zoning Administrator may not grant, through a formal determination, additional rights to use land beyond what is permitted by its current zoning classification. 

The other concerns raised about the bill seem to relate to lack of public notice to other potentially interested parties that such a SAGA is being made (i.e. a Zoning Administrator may issue a formal determination to a property owner without giving other potentially interested parties any notice).  What if you are a co-owner not reflected in any public record, a lender, or an adjoining property owner that would be affected detrimentally by an incorrect determination?  You would have no way of knowing that a determination had been made and that the clock on your appeal window is ticking away.   In fact, realistically, it is very unlikely you would know anything until your appeal period had lapsed (typically only 30 to 60 days, depending on the facts).

Some of the other statutorily listed SAGAs require some kind of legally advertised public review process; however, these are only those SAGAs that are the culmination of processes that allow property owners to do things beyond what they may do by-right, such as variances, special exceptions, etc.  Other by-right SAGAs do not require public review, such as subdivision approvals, plans of development, etc.  Clearly, a zoning determination may not permit something illegal, but who would know until it was too late?  Are we heading toward publishing legal notices that a zoning determination has been made?  How would this jibe with the "A Thing Decided Doctrine" relating to oral determinations made by Zoning Administrators?

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Land use policy is the fulcrum in the tug of war between the property rights of individual owners and the regulatory interest of communities in establishing and enforcing a vision of their own community.  Three separate conversation and analysis threads bring home the reality that the cookie cutter approach to development and even to the ordinances and interpretations that govern development are not the best approach.  Indeed, inflexibility of approach and failing to encourage a more diverse and vibrant style of development are exactly the failings that the new schools of thought of "urbanism" are seeking to replace.

On the first topic, Chris Cheatham reported last week on some criticism of the Tyson's Corner proposal to allow density bonuses to developers for reaching green certification levels.  A multi-family residential developer raised what I regard as legitimate questions about whether LEED should be the only standard used.  If jurisdictions are turning to third party voluntary programs and means of certification, they should develop the means to evaluate and understand these tools and avoid getting handcuffed to a single green standard fits all approach.  While the LEED standards have certainly evolved and continue to evolve, there are some who believe they still reflect their roots flowing primarily from the commercial design and construction environment.

The second thread was covered by my colleague Tad Lunger last week in reporting the results of the recent Arlington Retail Task Force.  Much of Arlington's success has been pinned to the concept of mixed-use development, but many developers have expressed heartburn over filling first floor retail space in areas that do not appear to support such uses.  Many retailers have expressed heartburn that this land use policy creates a glut of too much retail and too much competition.  It appears that the task force has reached similar conclusions.  This is another thread towards the same conclusion that a cookie cutter approach of requiring the same thing in the same way on every project does not achieve the intended results.

Against this backdrop, I ran across a brilliant presentation by James Howard Kunstler posted at Aribra entitled The Tragedy of Suburbia, a video from a TEDTalks conference.  Mr. Kunstler may be somewhat of a lightning rod for the vehemence of his critiques of suburbia, but he makes a lot of great points regarding architecture, community, the challenges we face regarding fossil fuels, and how to build a sense of lasting community through urbanism.  I know this may be a lot to ask, but trust me: watch this video.  It is worth the 20 minutes for sure.  It is thought provoking, and will honestly give you multiple gut busting laughs to boot if your sense of humor is anything like mine.

Pulling this all together, developing vibrant communities certainly requires a regulatory and legislative framework that permits local government to plan areas of density, areas of commercial and residential development, and to encourage the creation of appropriate infrastructure to support those efforts.  That framework should not be reduced to a cookie cutter, one-size fits all approach.  That type of approach is arguably what helped foster the suburban sprawl that most planners are seeking to undo now, most notably in Tyson's Corner locally.  In encouraging a more transit oriented style of development, localities should be mindful of not not crippling the development of true urban commercial cores through excessive restrictive and repetitive requirements, but instead should like to foster organic growth a much as possible. 

Image: Alice and Lorina Liddell on See-saw, from Lewis Carroll photobooks

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With well over two thousand bills filed for this session, I was curious to see what our local urban delegates and senators have chief-patroned this year.  So here's what they're up to:

Delegate Brink has patroned HB 1260, which proposes that the Uniform Statewide Building Code should also apply to buildings or structures built on state-owned property and that the Department of General Services would act as the building official for all such buildings.  He has also patroned HB 1314 which contemplates providing financial incentives equal to twenty percent of delinquent taxes collected by tax collectors, chargeable to the taxpayer in addition to the amount of the delinquent taxes.

Senator Whipple has also patroned two bills.  SB 665 would clarify the authority of the Common Interest Community Board relating to disciplinary actions and fact finding procedures.  SB 681 suggests delaying the effective date for the stormwater management regulations passed last session for a year.

Adam Ebbin, via HB 1222, proposes that electric utilities establish a fund to allow voluntary contributions by customers so that the SCC can use the money to incentivize projects that incorporate photovoltaic devices, solar water heating devices, or solar space heating.  He also thinks that HOT lane shoulder widths should be wide enough to handle transit vehicles, HOV service does not deteriorate, and ingress and egress from local connector streets are adequately addressed (see HB 1223).  Delegate Ebbin also thinks vehicles used in abductions should be forfeited (HB 1113)  and that your income tax filings should be due on April 15 to sync up with the federal deadline, rather than May 1st (HB 1278). 

Delegate Englin wants online political advertisements to be subject to disclosure requirements regardless of space to do so (HB 1261) and  wants to see automatic acceptance of service members to Virginia colleges who were in the top 10% of their graduating class (HB 274).

Senator Ticer wants to amend the charter of the City of Alexandria so that the board of review of real estate assessment is composed of nine members rather than five members, with five members appointed by the circuit court and four members appointed by city council (SB 572) and to allow for TDRs in zoning ordinances in localities with the urban county executive form of government (SB 636).  She also would like to see a license plate for recycling advocates (SB 709) and some careless driving offense proposals (SB 566).  She also proposes relaxing campaign contribution reporting requirements for local officials (SB 723).

Delegate Hope thinks that the Commonwealth Transportation Board ought to give first priority to funding transit operating costs rather than transit capital projects (HB 421), wants to prohibit smoking in all public buildings (except certain portions of corrections facilities) (HB 1351), and most notably, is chief patron of the Green Public Buildings Act (joined by Brink and Ebbin) (HB 1264), which would require all new construction public buildings over 5,000 SF (or renovations amounting to over 50% of the value of the building) to achieve LEED Silver certification or Green Globes two globe standards, achieve energy savings that exceed ASHRAE 90.1-2004 standards by at least 15 percent for new construction and 10 percent for major renovation, and  to provide water use savings of at least 25 percent over the baseline standard established in the federal Energy Policy Act of 1992.

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Andrew McRoberts reported on Thursday that the Virginia Association of Counties released its Model Transfer of Development Rights Ordinance for Virginia Localities.  Andrew was part of a working group that worked with a number of stakeholders to develop this model ordinance so that it may be used as a guide for localities in Virginia unfamiliar with the concept, application and practice of using transferable development rights, or "TDRs."

TDRs have been used in various places throughout the country for some time now.  Even in Virginia, the County Manager form of Government (as is the case in Arlington County), has been permitted to allow TDRs in its zoning ordinance since 2005.  In a nutshell, TDRs are simply the right to separate the density from one site and convey the density to another site.  This is typically done by identifying which sites can be a "sending site" or a "receiving site" in a locality's comprehensive plan and/or its zoning ordinance.  In Arlington County, for instance, TDRs have been implemented vis-a-vis its unique special exception process (the 4.1 Site Plan Process), and have also been enabled for its Clarendon Sector Plan.

TDRs are an excellent tool which provide useful flexibility for both localities and private interests.  This tool can allow localities to preserve important historical sites and other sites of interest while still allowing private landowners to sell the density off of a site, thus preserving their property rights. It also lets localities encourage redevelopment in areas that don't need extra height or density without having to provide valuable incentives that might otherwise cost localities money (i.e. tax credits, etc.).

The Model Transfer of Development Rights Ordinance for Virginia Localities was drafted to reflect the 2009 updates to Code of Virginia Sections 15.2-2316.1 and 15.2-2316.2, which "...[allow] severance of development rights without their immediate reattachment to another property... [and] provide for local taxation of the severed rights as a separate property interest during the time they are unattached to a specific land parcel."  The model provides example ordinance provisions and definitions, explanatory commentary for the model provisions, and even model legal documents for use when transferring density. 

Being able to transfer density has lead to some pretty interesting transactions and land use/zoning solutions for us here at Bean Kinney, and I am excited to see this very useful tool implemented in other localities in the Commonwealth.

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With the General Assembly set to convene and prefiling ending on January 13th, I thought it would be worth while to take a look at the legislative proposals submitted thus far to see if anything  jumped out at me this year from the land use side of things.  Suprisingly, this session looks kind of light so far (everyone must be focusing on the budget bills...).

From the local government side, it looks like HB 33 proposes requiring additional disclosures by local governments when seeking bond approvals from voters.  It appears the idea is that public notices would have to include not only the amount of debt to be assumed, but now also the anticipated number of years to amortize and the total debt service payable on the principal amount of the bonds proposed to be issued.  More information for voters - how can you vote against this one?

Also, HB 51 proposes to allow localities' governing bodies the option to prepare their own amendments to comprehensive plans rather than having to request the local planning commission to do so.  HJ 11 proposes the necessary constitutional amendment to allow localities to establish their own income or financial worth limitations for granting local property tax relief to seniors (65 year-olds) and permanently disabled individuals.

On the transportation side, it looks like this will be a season of transportation reform.  The big one, HJ 5, according to LIS, proposes an amendment to the Constitution of Virginia to require the General Assembly to maintain permanent and separate Transportation Funds, that revenues dedicated to Transportation Funds actually have to be deposited into the Transportation Funds, and limits the use of Transportation Funds to only transportation related purposes, unless the General Assembly secures a 2/3 plus one majority to borrow from the Transportation Funds.  Borrowed funds would have to be repayed, with interest, within a specified period of time.

Transportation programs are also proposed to now be subject to performance audits by the Auditor of Public Accounts per HB 42.  These audits would include cost saving assessments, and organizational structure/efficiency and effectiveness analysis of transportation agencies by private management consulting firms.

Also, HB 25 proposes to amend the requirements of the Statewide Transportation Plan, and for evaluation of selection of transportation improvement projects, to include as an objective identifying quantifiable measures and achievable goals relating to reduce greenhouse gas emissions.  HB 55 puts forward limiting assessments on localities for VRE service to no more than a locality collects through its motor vehicle fuel sales tax while HB 19 attempts to allow the Potomac-Rappahannock Transportation Commission to charge higher fares to VRE passengers from localities who are not that are not embraced by the Potomac-Rappahannock Transportation District.

And finally, from the conflicts of interest camp, members of the General Assembly, per SB 4, would have to disclose any money paid to him/her, or immediate family, in excess of $10,000 by a state or local government or advisory agency.  Former Section 30-111 explicitly allowed members and their family members to exclude what they were paid by various governmental agencies/commissions on their Statement of Economic Interest conflict of interest disclosure form.  I wonder why?

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Step 1:  Create Redevelopment and Housing Authority (the "Authority")

Step 2:  Authority  identifies areas of city that it wants to designate as a "blight"

Step 3:  Authority creates a Master Redevelopment Plan for areas of city it has determined are blighted

Step 4:  Authority uses public funds to condemn all the privately owned land in redevelopment area where private property owners are unwilling to sell to the Authority at the Authority's price

Step 5:  Authority sells some of the land obtained from private citizens to private entrepreneurs for sums it deems appropriate, holds surplus land in inventory for no specifically identified public purpose

Apparently, this is the basic recipe Roanoke has been following in pursuit of a 110 acre redevelopment area created for Carilion's Riverside Center business and medical park complex.  This case is boiling again because the Roanoke Redevelopment and Housing Authority, whose board consists of 7 members appointed by the Roanoke City Council, condemned and took land from a private property owner that was not was not a blight and was not wanted by the private interests undertaking the redevelopment of the area; this private property was simply located within the area designated by the Roanoke Redevelopment and Housing Authority's Master Redevelopment Plan area.  In short, private property was taken by governmental authority for no specific public purpose, except that the City apparently did not like its use (a flooring business) and wanted to see it redeveloped at some time in the future, and then the land was to be held in inventory until the City decides how it intends to use it.

This raises some pretty interesting questions, doesn't it?  The government takes extensive areas of land from private property owners for no specific public purposes, entrepreneurs lobby the government to acquire the land for private use (or vice versa), and the government sells the land to private interests of their choice in order to achieve their vision of economic redevelopment of an area.  Without the authority to do this, localities will claim they have little ability to achieve badly needed, large-scale revitalization objectives in blighted areas.  With this authority, localities have the capability to take private property owned by one party and give it to another private party that the locality deems more favorable.

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In case you missed it, Arlington County's Rosslyn-Ballston corridor made the NY Times on Thursday.  The article, entitled "An Oasis of Stability Amid a Downturn", provides how well Arlington County is weathering the current real estate market as compared to other locations of the country.   The article cites Arlington's 8.6% office vacancy rate against the national average of 18.3% (and the second lowest retail vacancy rate out of the 23 major markets surveyed), and attributes these relatively low vacancy rates to the corridor's well-planned, transit-oriented mix of uses and proximity to the nation's capitol, public transit/Metro system, and the County's ability to attract and retain a number of federal agencies and universities in the County.

It is true that the major key to Arlington's success has been its proximity to the federal government, and that it is a natural location for expansion of density outside of the District of Columbia (Arlington actually being originally planned as part of DC), but it is great to read about the truly excellent foresight the County has exercised over the years to ensure this potential was not lost and directed to other localities in the region.  Arlington really is a unique market that deserves special attention, particularly during economic downturns.  In fact, Arlington experienced similar resilience during the Great Depression.

I am very happy to see Arlington get the recognition it deserves.  One quote hit the nail on the head: "'[t]here’s a lot of tremendous economic fundamentals in place' in the corridor..." 

And to top it all off, Virginia was just named the "Best State for Business" by Forbes.com. for the fourth year in a row.

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I don't know how many people out there have been paying attention, but the General Assembly made an interesting addition to Virginia's historic preservation statute (VA Code Section 15.2-2306) this past spring.  Prior to this addition, Section 15.2-2306.A.1. of the Code of Virginia used to allow a locality to adopt or amend its zoning ordinance to designate historic districts and landmarks, to create a historic review board to administer the historic ordinance, and to require that alterations or development in historic districts must be approved by the historic review board.

However, the General Assembly has now added the following sentence to 15.2-2306.A.1. (click this link to see the actual text of the bill):

"A governing body may provide in the ordinance that the applicant must submit documentation that any development in an area of the locality of known historical or archaeological significance will preserve or accommodate the historical or archaeological resources."

This seemingly innocent addition, which at first glance appears to simply require additional documentation by property owners or developers in historic districts, hides some extremely broad grants of authority to localities.  First, this new sentence requires a property owner or developer to "preserve or accommodate" historical resources and to document how they will achieve this "accommodation".  In the hands of a locality, requiring a private property owner to "accommodate" historic resources has the potential for a lot of things.  What a locality could possibly demand as an "accommodation" I fear is limited only by our collective imaginations.

Second, note that this new sentence does not impose these new requirements only on historic districts or landmarks that have been legally designated through a public process.  These new requirements apply instead to "...an area of the locality of known historic... significance..."  So who gets to decide where these “areas” are and what their boundaries will be? Who gets to decide what is historically significant and what is not? Are we talking about areas around historic districts? This modification has expanded the reach of this statute beyond legally designated historic districts and landmarks to potentially undesignated and undefined “areas” of significance.  In a commonwealth nearly four hundred years old, this can get pretty dicey.

Third, what exactly do they mean by accommodating historical “resources”? Obviously this will apply to preservation of a historic building, etc., but does this mean a developer, in an undefined “area” of historic significance, will be required to make contributions into a historic preservation fund or contribute to some other mechanism deemed by a locality to be a “resource”?

So where are the localities going to go with this new authority they've been granted?  With language as loose as this, I suppose pretty much wherever they want.

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I had a great time last Thursday at another one of Rutherfoord’s Trends in Building Green seminars. We got to hear from Tommy Russo from Akridge, Eric Oliver from EMO Energy Solutions, Bobby Christian from Tangible, and Tom Mawson, the Executive Director for the U.S. Green Building Council’s National Capital Region Chapter. 

I made a presentation outlining our region’s local jurisdictional green building trends, policies and incentives for private commercial development from a zoning, planning and land-use perspective. Here’s the slide show from the presentation. There was quite a bit more explanation beyond what is outlined in the slides, including bonding and other security requirements for incentives and a number of new initiatives a number of localities are currently pursuing. If anyone has any questions about what any of these localities (Arlington County, City of Alexandria, Fairfax County, Loudoun County, Prince William County, Montgomery County, Prince George's County and Washington, D.C.) are doing, please feel free to post a question and I can respond in more detail.

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A quick “congrats” to Jim Pritchett who has been named Executive Director of Alexandria’s relatively new Housing Development Corporation. The Alexandria Housing Development Corporation (AHDC) is a non-profit developer and owner of affordable housing, primarily focused on projects located in the City of Alexandria, Virginia. 

The creation of AHDC was pursuant to a request from then-Councilman William Euille and Councilwoman Joyce Woodson to Alexandria city staff for a plan of action to address the City's affordable housing needs.  In April of 2003, Mildrilyn Davis, Director of the Office of Housing, and Phil Sunderland, City Manager, responded with a memorandum detailing the establishment of a new non-profit housing corporation. This plan anticipated city involvement in the creation and initial establishment of the corporation, but without direct oversight of its activities.  In January of 2004, the City Council named five incorporators to form the corporation and oversee its initial setup and AHDC was incorporated in May of that same year. 

AHDC is preparing to celebrate the Grand Opening of The Station at Potomac Yard on October 17th.  This unique project is a mixed use development that includes 64 units of affordable and workforce housing, Alexandria's newest fire station, and some retail space that is available on the first floor. 

Good luck to Jim and the rest of the AHDC team.

For more information about this project and AHDC here’s the link to their website.

Thanks to Larry Adams, the project's architect from LeMay Erickson, for allowing us to post the above rendering.  Here's a link to the architect's website:  LeMay Erickson Willcox Architects

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For those of you that don’t already know, Arlington County has filed a complaint against the U.S. Department of Transportation, the Secretary of the United States Department of Transportation, the Federal Highway Administration, the Federal Highway Administrator, the Virginia Department of Transportation, and the Secretary of the Virginia Department of Transportation. Apparently, the purpose of this complaint is to stall and possibly derail the HOV/HOT highway project in Northern Virginia which would add additional travel lanes along the I-95/I-395 corridor from Spotsylvania to the Pentagon. For decades, Arlington County has been tirelessly waging a war against suburban sprawl and the impacts of funneling more and more automobile traffic from outlying suburban counties through Arlington County.

 Among many other things, the complaint alleges that Federal Highway Administrator, the Secretary of VDOT, and the Secretary of the US DOT, personally and deliberately, unjustifiably defined the project so narrowly that it would be excluded from the comprehensive review and public scrutiny requirements of NEPA and the Clean Air Act. The complaint alleges that there is no defensible way that the Northern Section of the project could obtain a “Categorical Exclusion” allowing it to bypass the Environmental Impact Statement or Environmental Assessment processes which would require an in depth review and analysis of the environmental impact of the project.

The complaint also alleges that the defendants failed to adequately analyze the impact on Arlington’s communities that the significant increase in traffic volumes the project would generate. Arlington is particularly concerned about what Arlington considers some of its traditional and historic neighborhoods that are in proximity to the project.

Unexpectedly, however, the complaint also alleges that Secretary LaHood, Secretary Homer and Administrator Mendez deliberately, in their individual capacities, promoted this project to “…enable a financially-able, privileged class of suburban and rural, primarily Caucasian residents…” to the “…disparate impact of the Project on minority and low-income communities…” in Arlington. Ouch. Sounds like the gloves are off.

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After an astounding nearly two-years of litigation, Virginia’s Fourth Circuit found for a private property owner and the City of Norfolk in August following a challenge by a private citizen of the City’s ability to modify height restrictions in the City’s Ghent historic districts. Apparently, in the Ghent historic districts in Norfolk, maximum building heights may be altered through a legislative act by the City Council through a special exception process which culminates in the enactment of a “Certificate of Appropriateness”. In anticipation of the Christ and Saint Luke’s Episcopal Church being awarded such a certificate to increase the height of a proposed building addition from 35 feet to 53 feet, a private citizen filed a complaint challenging the process via its enabling legislation and on constitutional grounds. 

The crux of the complaint was based on two basic premises: (i) the City did not have the appropriate authority to legislatively approve the increase in building height because such an act would amount to an “illegal variance” (i.e. such a special exception requires at least some kind of judicial or quasi-judicial review by the Board of Zoning Appeals), and (ii) the Certificate of Appropriate process followed by the City failed to provide her adequate equal protection and due process protections.

The interesting twist in this case from a land use/zoning perspective is the Court expounds on the extent of the City’s legislative authority to modify Zoning Ordinances through the Commonwealth’s historic preservation statute § 15.2-2306. According to Judge Thomas, through § 15.2-2306, the General Assembly has empowered localities to enact historic preservation ordinances, the ordinances “may” provide for a separate review board to administer the ordinance, and an ordinance “shall” specify which parties would have the right to appeal a determination.  Simply put, the City’s Zoning Ordinance provided for all of these things (i.e. that the City’s Planning Commission would be this review board, that only a party applying for a Certificate of Appropriateness would have the right to appeal if denied, etc.)  Therefore, the enabling legislation, § 15.2-2306, clearly allows an avenue for legislative special exceptions separate than the enabling legislation which contemplates quasi-judicial review by a Board of Zoning Appeals for variances.

Here's a PDF of the Judge Thomas’ unsigned letter opinion. 
 

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