Virginia Real Estate, Land Use & Construction Law : Virginia Construction Lawyers & Attorneys : Bean Kinney & Korman Law Firm : VA Real Estate, Land Use & Zoning

Real estate lawyers and developers know that overcoming NIMBYism is a huge challenge. We are finding that even after approval, you still may face other hurdles including neighbors or even your business competitors challenging or appealing your zoning or permit approval.

Virginia Lawyer’s Weekly recently reported that the Supreme Court of Virginia issued an “unusual order” ... “acting with uncommon speed” when it ordered a halt to two planned local government hearings in Prince William County in such a case.

Spectrum Healthcare obtained zoning and permit approval and started construction of a health care facility as part of a bid for a federal government contract. A competitor of Spectrum, CRA, lost out on the federal contract award and filed a bid protest. CRA separately requested a zoning interpretation from local officials that the use of the facility would violate local ordinances. The zoning administrator rejected CRA. CRA then tried to “appeal” that interpretation to the local Board of Supervisors and Board of Zoning Appeals (BZA).

Spectrum asked the local circuit court to step in and issue an injunction stopping the CRA appeals. The circuit court refused finding that Spectrum should first exhaust its administrative remedies. Spectrum then filed an expedited review request to the Supreme Court of Virginia. This request resulted in the rapid order from the court ordering a stay of the BZA and Board of Supervisors hearings pending the circuit court’s complete review.

The standard in Virginia is that only an “aggrieved person” may appeal a “determination” of a zoning administrator. Even beyond the Spectrum case, I have started to hear rumblings of other parties aggressively attacking zoning and permit decisions, including properties which are not adjoining or even nearby but which instead involve business competitors. We can expect this issue to continue to percolate, and possibly be the topic of legislation soon. Be warned that approval may not be the end of challenges.

(Full disclosure: My colleague, Raighne Delaney, represents Spectrum Healthcare in this case.)

Reprinted with permission from the Washington Business Journal.

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According to a good source, GSA and WMATA are working on a new policy to allow GSA to modify its rent caps for sites that meet certain transit oriented development criteria (i.e. sites within a certain proximity to Metro stations, etc.).  As many of our readers know, GSA caps its rents as a result of negotiations with OMB per rules created to implement the Budget Enforcement Act of 1990. OMB (through Circular A-11) created a set of rules which are used to determine whether a federal lease is an "Operating" or "Capital" Lease. To make a long story short, GSA and OMB have agreed to rent caps to make it easy to stay within "Operating Lease" guidelines. The current Operating Lease rent caps are $34/SF in Maryland, $38/SF in Virginia, and $49/SF in the District of Columbia.  With vacancies finally falling and rental rates starting to rise, the natural effect of these caps will be to push federal office space development away from mass transit locations, which yield the highest rental rates.  Currently, big chunks of space for federal agencies just aren't normally available below these price caps where there are mass transit services available.

This clearly goes against the current policies for transit oriented development being advocated by the current administration, the EPA, HUD, pretty much all of our regional localities, and our state level transportation agencies.  So enter the solution: GSA and WMATA are working together to achieve modify current guidelines to be in line with modern transit oriented development goals to allow GSA the flexibility to adjust rent caps upwards to allow large government employers to locate in areas where there is mas transit systems available to handle the commuter volumes they will create.  Apparently, GSA and WMATA are about five months away from realizing this new policy.  This has the possibility of having sweeping impacts to how and which localities and private interests can capture federal tenants/departments/agencies and the resultant collateral economic development benefits these opportunities provide.  How these new transit oriented development guidelines/policies will define which sites are eligible for upward flexibility for rent caps remains to be seen, but we'll keep on top of it and keep you posted.

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Have you heard the DC Zoning Commission is looking into adopting a new set of GAR requirements?  No, we're not talking about the kind of fish that eats every other kind of fish it can fit in its mouth, we're talking about Green Area Ratio ("GAR") requirements.  According to the report prepared by DC zoning staff, the GAR concept is not a new concept, but is a Low Impact Development best management practices tool used in major cities in Europe such as Berlin and Malmo.

According to the USGBC, GAR "..is the ratio of the weighted value of specific landscape elements to land area... [and] is determined by calculating the area of specific enumerated landscape elements, multiplied by a factor assigned to each element, which is then divided by the lot area of the project."  According to DC zoning staff, GAR "...is an environmental site sustainability metric intended to set requirements for landscape and site design that meets goals for stormwater runoff, air quality and urban heat island... [based on] allowing a user to pick among optional elements in order to meet an overall [minimum] GAR score."  DC is proposing to include the GAR regulations within Subtitle B and Subtitles D through J with Subtitle B containing an explanation of the GAR system and the other land use subtitles containing zone specific permission, conditions, and requirements.

In a nutshell, what they are talking about doing is requiring property owner to meet a certain weighted score in relation to the amount of land area they have as a requisite to filing for building permits and approval will be a prerequisite to obtaining a certificate of occupancy.  Submission requirements are outlined in proposed Section 1305, and of course you can get a variance if your site is particularly difficult per Section 1306.  If you need to understand the specific details of what is being proposed, the text amendments and staff report are available here for your review, and the hearing is slated for December 20th before the DC Zoning Commission, with the Zoning Review Task Force considering it on November 27.  Here's staff's slide presentation from October if you want a primer before you dive into the details.

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This is the second posting in my station by station land use analysis of Northern Virginia's new Silver Line.  The first station (at the Silver Line's eastern terminus) is the East Falls Church Metro Station, which will serve as the transfer station from the Silver Line to the Orange Line.

The East Falls Church Plan is currently undergoing its public review process, and is a collaborative effort between the City of Falls Church, Arlington County, VDOT, WMATA and the community.  It has been in the works for several years at this point and has been a hard plan for everybody to get behind, not because everyone doesn't want to prepare for the inevitable fact that the East Falls Church Metro Station will need to be able to handle the increased number of commuters funneled into the Orange Line from as far out as Loudoun County, but instead because they can't start from scratch, and are trying to provide a solution to a difficult set of existing circumstances.

The first thing you'll notice about the plan is that the station area is located in a predominantly single family home neighborhood.  The second thing you'll notice about the plan is that the East Falls Church station area is cut up by a number of multiple lane highways and major arterial roads (click here for a full size vicinity map of the plan), including I-66, Lee Highway, Washington Boulevard and Sycamore Street, and their associated merging/ramp systems.  This creates a number of complicated problems from the start - a single family community obviously does not want to have a ton of density dropped into the middle of its neighborhood, and because the neighborhood is already fractured by these major roadways, it makes it very difficult to connect density to the Metro Station.  Separating density from mass transit clearly goes against what many consider one of the basic tenants of modern urban planning. 

As you can see from the plan, the planned upgraded metro and transit station is not really centrally located within the plan.  Instead, density is planned along Lee Highway on both sides of the I-66 overpass.  The result has been a bit of an identity crisis about whether this is the Lee Highway "gateway plan" or whether this is in fact a new plan for the East Falls Church Metro Station, and no real defined sense of "place" when it comes to East Falls Church.

Setting all of those issues aside, the plan itself is pretty limited in scope, with only a little over a dozen sites planned for redevelopment (the redevelopment sites are shown here).  The plan keeps most of the planned redevelopment sites to 5 to 6 stories, with a few sites on the Falls Church side of the line having the potential to creep up to 8 stories (click here for the Building Heights Plan).  The plan is for a mix of uses, though given the location I imagine (here's the use plan) the market will demand more residential uses than commercial, and, except for the new planned transit station, there is not a lot of retail planned.

The plan for the upgraded station itself is really the highlight of the plan.  The station (projected to be a 450,000 SF facility) is planned around a 30,000 to 38,000 SF public plaza that will be framed by retail to serve the surrounding neighborhoods, and will provide an additional 75 to 100 spaces of retail parking.  Here's an elevation of what it might look like.  A massing study was also prepared which helps give it some context, and can be viewed here. 

Next stop: Tysons East.

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With the FFW holding behind us, I thought it would be an opportune time to spend some time focusing on how the planned Silver Line Metro Station areas are planned to build out, so that we can provide a comprehensive guide to Northern Virginia's new transit corridor, station by station.  This first post is a macro-analysis of the system as a whole, which will be followed by a station by station land use, transportation and density analysis, and then probably an end-cap article summarizing the capacity of the corridor as a whole.

As you can see from the system wide map, the Silver Line will extend at its western terminus beyond Dulles Airport to Route 772 in Loudoun County, and the East Falls Church Station will serve as the transfer station from the Silver Line to the Orange Line at its eastern terminus in Arlington County.  The construction of the Silver Line will occur in two phases. Phase I includes the construction of the four stations included as part of the Tysons Corner Plan and the Wiehle Avenue Station on the eastern side of Reston.  Phase II will include six additional stations, beginning at Reston Parkway and continuing out through Route 772.  Phase I is expected to be completed as early as late 2013, and Phase II is targeted to be complete sometime in 2016.

While there are a lot of statistics out there, some believe the initial Phase I component of the system is anticipated to add 60,000 daily rail trips to the Metro system, and the initial Phase I and Phase II combined is anticipated to add 100,000 daily trips to the Metro system.  These statistics will change as density fills behind station construction.

With the design and location for each station nailed down, it is a good time to focus on how the land use and planning studies for each station area are playing out.  We'll start in the east and move west, and will provide a use and density analysis for this new mass transit corridor.  Next post:  Station #1, East Falls Church and The East Falls Church Plan.

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The second draft version of the International Green Construction Code being prepared by the International Code Council (Public Version 2.0) was released last week as anticipated, which incorporates the actions taken at the hearings this past August.  If you have any suggestions on how to improve on Public Version 2.0, Code Change Submittals are now being accepted and the forms are available on the ICC's website.  The final action to adopt the IGCC is a year away, and the public review process will continue until then.  The schedule can be found on their website here, and we'll endeavor to keep you updated as it continues to evolve.

It is a lean, 221 page document, so you're going to have to set some time aside to wade through it.  In a nutshell, it really is a lot like the LEED Reference Guide for Green Building Design and Construction, so if you are familiar with that already, as many of our readers are, it is pretty much the same thing repackaged, but your local Building Official will be interpreting it, enforcing it, conducting commissioning, etc., rather than the current "voluntary" system set up by the USGBC.  There are a lot of kinks that will need to be worked out by each jurisdiction as they elect which components of the IGCC to adopt, as there is a lot of overlap and conflict with federal environmental law, ADA regs, zoning ordinances, etc.  Hopefully, this opportunity is used to clean up some of the conflicts.  Also, where the development community has been in a position to resolve a lot of these conflicts on its own during the various special exception processes, being flexible with design and being able to pick and choose which LEED credits it wanted to chase, we now stand to lose some of this flexibility (i.e. certain components of the IGCC will be mandatory and while other provisions will be elective), so hopefully an eye toward the appropriate amount of flexibility will be maintained during the process - but this may very well be part of the trade-off in the transition from an incentive based system to a mandatory system.

Also, there is no distinction in the IGCC between building types, as it proposes to apply to "...every building or structure or any appurtenances connected or attached to such buildings or structures and to the site on which the building is located."  The IGCC won't just apply to new construction, either, but to "...the design, construction, addition, alteration, change of occupancy, movement, enlargement, replacement, repair, equipment, location, maintenance, removal and demolition of every building or structure..."  That's some pretty broad language...

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As I was discussing some of Arlington's Community Energy Plan goals with an architect friend of mine the other day, it was apparent to both of us that a number of the County's stated goals for energy efficiency (such as the 30% increase in efficiency) in its plan track the time line for the incorporation of the the International Code Council's Green Construction Code in one form or another by Virginia.  After spending some time reviewing the Synopsis of the International Green Construction Code currently in process to be adopted by November of next year by the ICC, it was clear that what has been contemplated and encouraged by USGBC's third party rating system was adopted by the proposed ICC Green Construction Code.  In fact, the requirements set out for election by jurisdictions should sound pretty familiar to you, such as Site Development and Land Use, Material Resource Conservation and Efficiency, Energy Conservation and Earth Atmospheric Quality, Water Resource Conservation and Efficiency, Commissioning, Operation and Maintenance, etc.  There's even a handy checklist to use, just like the one the USGBC provides.

With the revised public version due out as early as tomorrow (Public Version 2.0), and the Final Action Hearing to be held November 3rd through November 6 of 2011, Virginia will be in a position to review and decide on how to incorporate this new code proposal in 2012, with plenty of time to coordinate and be prepared to implement these new changes by 2015. 

So, how would this impact what USGBC presently does?  Well, it would obviously be profound.  If the International Code Council's Green Construction Code is broadly adopted, mandating equitable green building design in jurisdictions across the country, need for a third-party certification body would be in question.  Ongoing monitoring and enforcement would fall under the legal purview of your local Building Official, rather than a remote "voluntary" certification body, and everybody would be subject to the new code, rather than just those electing to go through the process, broadening the environmental and efficiency impacts dramatically.  However, one difference I noticed that kind of jumped out at me was the lack of reward for innovation, which may unfortunately become a trade-off for mandating design requirements.

So if any of you are wondering how Arlington County expects to be in a position to mandate improvements to by-right projects (both new construction and renovation) through its new Community Energy Plan, hopefully this clears things up.  Here's the official primer video explaining the proposed Green Construction Code if you are interested.

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Well, now that I've had the chance to really focus on and review Arlington County's Community Energy Plan Summary of Preliminary Recommendations and its Addendum, published on October 13th, it looks like the County has taken its first step toward its goal for a Community Energy Plan.  As with prior explanations about the Community Energy Plan, there are quite a lot of facts and statistics, and there is a lot of information presented, which really doesn't answer the basic question that everybody is asking, which is: "How will this plan impact me?"  For this reason, without commenting on the policies or goals behind the plan, I thought it might be time for a fact sheet that distills out the implications of the preliminary plan.  As with most policy documents, the plan will change and evolve over time once it is adopted.  So here's the tip of the iceberg:

Governance:

The County Manager would administer and implement the plan.  This means the County Manager will eventually delegate the implementation to the various department heads necessary to pursue the policies set forth in the plan, and implementation would then trickle down to the staff level from there.  There would also be an Advisory Board, presumably appointed by the County Board and made up of involved community representatives, to consider ongoing policy issues and to provide input on specific initiatives, similar to other commissions in the County, such as the Planning Commission, Transportation Commission, etc.  Also, there would be implementation teams created at the neighborhood level to encourage implementation of the plan, and to identify localized neighborhood-scaled projects/initiatives.

Impacts on the Single Family Home Owner:

For single family homes, the County has identified, beginning in 2015, new construction and renovations of existing single family homes will be expected to increase home efficiency by 30% more than today's average (to increase to 50% by 2050).  Therefore, if you were to submit any plans for a new home or home renovation, you would be expected to establish how this increase in efficiency would be achieved.  It is unclear how the County will implement this goal, as neither the Uniform Statewide Building Code nor the Zoning Ordinance presently permits the County to require this on by-right single family home construction or renovation projects.  At a minimum (there are Constitutional implications) the County would need enabling legislation at the state level to implement this goal as a "requirement" for by-right projects.  Also note, the County wants to bring community energy planning to the civic association level, so the County will be looking to encourage single family home owners to comply with neighborhood-level energy plans adopted by your local civic association and probably vetted through the public process.

Impacts on the Commercial Property Owner:

As with single family homes, starting in 2015, all new buildings (and renovated buildings) will need to operate 30% more efficiently than today's average (to increase to 70% by 2050).  While increased energy efficiency has been an ongoing bartering item during the County's various special exception processes, it is also unclear how the County will implement this goal with respect to by-right commercial projects without enabling legislation at the state level.

As with other planning documents, the Community Energy Plan will be broken down into corridor and sector plans for fine-tuned planning purposes.  This means when you are scoping sites and doing your due diligence on projects, whether as a developer, architect, engineer, or some other professional, you will need to consult these plans, as you would any other component of the Comprehensive Plan, to determine the impact of what the plan proposes on the site you are looking at.  These more specific corridor and sector energy plans would be created at a later date per their own planning processes.

For certain "to-be-determined" high density areas, there will be a requirement to be part of a "district energy" system beginning in 2015, with the goal of having 70% of buildings in these designated areas part of the district energy grid by 2050.  Unless there is state level enabling legislation, this will likely be implemented through the various special exception processes as most buildings in these designated areas are already subject to special exceptions.  Without state level enabling legislation and dealing with certain constitutional issues, it is unlikely these new requirements could be applied retroactively to existing approvals (until you come back for a new project or to modify an existing project).  If you need a primer on what district energy is, click here.  The plan is silent so far on who would own and operate these district energy systems, and how they would be financed and maintained once in place.  For commercial buildings located outside of these high-density designated areas, where district energy is not as viable, lower-scale systems would be the requirement to achieve a goal of 50% energy reduction, such as localized heating and cooling systems, i.e. PV, solar thermal and geothermal systems.

Incentives to Normalize Practices:

While the County currently awards bonus density to projects that achieve certain LEED certification levels, it is silent as to whether bonus density will be available for achieving Community Energy Plan goals.  The plan seems to suggest a very different concept, which is to create an on-going performance-based system of incentives,  through tax and other financially comparable incentives to make projects attractive to investors.  What these comparable incentives might be, how they would work, and how ongoing performance-based evaluation would be managed is not explained.

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How many times have you land use and zoning folks gone through your locality's zoning ordinance, read some random sentence that is a surviving remnant from like the 1938 ordinance, and thought: "What the heck does 'draying' mean?  And what does this have to do with our twenty story office building?"  Or, "Can my neighbor really keep goats in his front yard?"  Well, if you do work in Arlington County, you may not have to deal with these indignities for too much longer.

County staff have officially gotten as sick of the inconsistencies, ad hoc application of rules, and conflicts associated with the current ordinance as everyone else, and finally have gotten the go-ahead to start making things better.  If you read the staff report for the new proposal for a comprehensive re-write of the Zoning Ordinance, it reads like what a P & M session at one your local NAIOP and NVBIA chapter meetings sounds like.  The process will be "officially" kicked-off tonight at a public hearing of the Zoning Committee, and is proposed to be dealt with in three phases over an extended period of time.  The first phase will be a clean-up operation dealing with existing inconsistencies with the Code of Virginia and codifying current practices, the second phase will address major reformatting of the ordinance and the third phase will address major policy amendments.

Substantively, the various zoning districts do not appear to be on the table for major amendments, however, the procedural and policy sections are, as well as some of the latest hot topics.  These include Sections 32A (Landscaping), Section 33 (Automobile Parking, Standing and Loading Space), Section 34 (Signage), the dreaded Section 35 (Nonconforming Buildings and Uses), and Section 36 (Administration and Procedures). 

It also looks like the County intends on hiring outside consultants to help them through the process.  More to follow after the hearing tonight. 

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According to the Chesterfield Observer, Chesterfield and Hanover Counties intend to ignore the Attorney General's recent opinion (click here for our previous analysis when the opinion was issued) about the applicability of Code of Virginia Section 15.2-2303.1:1 and will continue to deman cash proferred prior to 15.2-2303.1:1's July 1, 2010 effective date.  The purpose of Section 15.2-2303.1:1 was to postpone the payment of cash proffers for residential developments from issuance of the building permit to issuance of the certificate of occupancy in order to give residential builders and developers some financial relief until 2014. 

The AG recently concluded that this new statute applied retroactively to cash proffers agreed to prior to July 1 of this year; however, apparently Chesterfield County and Hanover County don't agree, and assert that the new statute may not undo prior Chesterfield zoning approvals.  So what will these localities do now?  That's simple: nothing.  They will continue to demand cash proferred prior to July 1 as if new Section 15.2-2303.1:1 had never been enacted and as if the AG told them they may not do so.

So what does a residential builder or developer do now?  As usual, they haven't got much of a choice: either pay the cash demanded to get their building permits or take on a locality in court and watch as their project grinds to a halt and crashes into the red.  Unless someone with deep enough pockets decides to take on one of these localities out of principle, it sounds like the January 2011 legislative session may have to be the necessary fix for this one, particularly if more localities choose to ignore the AG's recent opinion.

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It is no secret that the Commonwealth of Virginia is the first choice for business in the Washington-Metro Region (being exceedingly more pro-business than the District of Columbia and Maryland), and for the past several decades, Arlington County and the City of Alexandria, with a few exceptions, have had a virtual monopoly over the Metro in Northern Virginia, access to quite a bit of DOD and other federal bucks (in part because of the access this mass transit provided to federal agencies for businesses and federal employees, etc.)  But let’s be blunt; while good urban planning has played a serious role in the urban expansion across the river from DC in Virginia, good urban planning is basically a symptom of great location, location, location.  Arlington and Alexandria have had the benefit of being immediately adjacent to the federal trough in the most business-friendly state in the region with a monopoly over mass rail transit.  These are the core reasons that they have enjoyed their prosperity and growth.  

Recently, however, quite a lot of changes have occurred in Northern Virginia, which cumulatively will eventually have sweeping impacts on inter-locality competition for businesses and economic development, a lot of which we still haven't really begun to feel the effects of.  Often, many of these changes are dealt with as solitary issues by journalists, self-pronounced experts, the person talking the loudest, etc. and I often wonder whether they can see the forest for the trees. 

Our current sequence of evolutions has been underway for years, the seeds being planted even before Eisenhower picked Burke Lake Park for the location of Dulles Airport and the construction of the Beltway began. Then I-66 was constructed, then the toll road and the Greenway. Now, finally, the Silver Line is being constructed, allowing metro to extend as far out as Dulles, which will effectively make the East Falls Church Metro Station the transfer station to the Orange Line, much like Rosslyn serves as a transfer station today. 

Not only are our western counties now well situated to be connected to the DC federal market more competitively, many of those federal agencies and related businesses, which have subsidized the Arlington and Alexandria economies and helped them weather recessions and unemployment disproportionately well for so long, are relocating to western and southern localities due to the Base Realignment and Closure Commission’s recommendations, taking jobs and federal money with them.

The Tyson’s Corner Plan is also the first really modern, mega-urban plan to be located just a few short metro stops from Arlington County and the District of Columbia on the Silver Line, which, once realized, will offer over 1,200 acres worth of the benefits that good urban planning can provide to businesses and residents, literally on Arlington and Alexandria’s doorstep.  In Virginia, Arlington and Alexandria have never had to deal with this kind of competition and I’m not sure they are prepared for this eventual reality, however distant it may seem.  If there is any doubt, just look at the impacts Arlington and Alexandria have had on the DC market.  They've been able to offer an alternative for businesses not to have to be located in the District of Columbia in business-friendly Virginia, with metro and federal access, for less money, etc.  How are the western counties not going to eventually be in the same position in relation to Arlington and Alexandria?

Collectively, this really is all a lot of large-scale change underway for Northern Virginia.  So what will the cumulative impacts be, when will we start feeling them and what will all this mean for real estate interests in Northern Virginia?  Well, one thing is certain - the cat is out of the box.  I guess all that we can know is that the market will change, and, provided the regional economy continues to grow, it is clear that the western counties have no way to go but up.  It seems to me, though, that Arlington and Alexandria will likely also benefit from being in a central location between all this new density and the District of Columbia, although it will get more competitive to retain and attract new private business interests and federal agencies once things in the western counties start to come into focus, as the western counties find themselves in a better position to aggressively pursue those opportunities which used to be disproportionately available solely to Arlington and Alexandria. 

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As many of our readers know, the new Crystal City Sector Plan was considered last night (see here for our prior analysis of the proposed plan), but did you know it contained a proposal for a Tax Increment Financing ("TIF") fund  to include the Crystal City, Potomac Yard and Pentagon City areas at the same time?

So what is a TIF fund?  It is actually a very common and pretty straightforward tool used by localities nation-wide to finance area-specific public improvements, however, this tool often makes many people nervous because it essentially is based upon using future, anticipated tax revenue increases to finance current improvements.  Said another way, the County has projected a certain "incremental" increase in property values, and will use this projected incremental increase to finance debt issued to pay for specified projects.  The County has projected these incremental tax revenue increases based upon planned new densities and several projected build-out timeline possibilities.

The Crystal City Sector Plan anticipates about $207,000,000 in costs for public infrastructure improvements in streets, mass transit and public spaces over the next 20 years (such as the proposed new streetcar system, etc.).  According to County staff, the recently adopted FY 2011 - 2016 Capital Improvement Program already relies on the TIF as a funding source for these three geographic areas.  TIF fund programs have been critical components to many regional revitalization efforts, including Arlington's Columbia Pike Revitalization Initiative.  The County believes, over the next six years, this tool will provide approximately $27,000,000 of funding for dedicated TIF capital improvements.

Here's a link to the County Manager's report on the Crystal City, Potomac Yard, and Pentagon City TIF fund proposal.

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Per a request made by Delegate Christopher Peace (R - 97th District, who represents parts of Hanover, Caroline, King William, King and Queen, Henrico, Spotsylvania Counties and all of New Kent County), Attorney General Cuccinelli has clarified the position of the AG's office about the newly enacted Section 15.2-2303.1:1 of the Code of Virginia, which prohibits localities from collecting conditional zoning cash proffers.  As many of our readers recall, the General Assembly passed Section 15.2-2303.1:1 this past legislative session which, through July 1, 2014, prohibits localities from requiring payment of cash proffers until after completion of final inspections and prior to issuance of a certificate of occupancy for residential development in order to alleviate the financial hardship currently being experienced by the residential building and development community.  A number of localities in Virginia have taken the position that this statute does not apply to proffers made prior to the enactment of 15.2-2303.1:1, prompting the opinion requested by Delegate Peace.

The specific questions posed by Delegate Peace were:

"...[W]hether newly enacted § 15.2-2303.1:1, which prohibits localities from collecting
conditional zoning cash proffers at any time other than after completion of the final inspection and prior to issuance of any certificate of occupancy for the subject property, applies to proffer agreements that were formed prior to July 1, 2010, the effective date of the statute... [and] whether such retrospective application would violate the Contracts Clause of the United States or the Virginia Constitutions."

The AG's response was positive for the residential development and building community, providing that, "...as of July 1, 2010 and through July 1, 2014, a locality may not accept or demand payment of any uncollected cash proffer payments, including those agreed to prior to July I, 2010, until the completion of a final inspection and prior to the issuance of a certificate of occupancy for
the subject property, notwithstanding the provisions of any such proffer agreement to the contrary... [and that] this interpretation does not infringe the Contracts Clauses of the United States or Virginia Constitutions."

With litigation between certain localities and developers looming on the horizon on this issue, it remains to be seen whether localities will respect the opinion of their Attorney General or not.  The reasoning behind the AG's opinion was clear and straight forward, that the Contracts Clause was drafted and included in our Constitutions to protect private citizens' contractual rights, not created to be used by localities to claim they are not subject to the authority of the Commonwealth and  statutes enacted by the General Assembly.  Additionally, the AG found that the plain language of 15.2-2303.1:1, as well as the very clear legislative history of the statute, clearly establish the intent of the General Assembly to have the statute apply to all proffers, already existing at the time of enactment the statute and thereafter.  Here's Attorney General Cuccinelli's written opinion if you are interested in reading the entire opinion.
 

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In an attempt to get out of having to comply with a proffer, a developer has tried, and failed, to claim that a proffer could not be amended at a public hearing without having to resubmit the amended in proffer in writing and to conduct a subsequent public hearing.  The facts in Arogas, Inc., Et Al. v. Frederick County Board of Zoning Appeals, Et Al., were pretty straightforward.  Prior to a public hearing for a rezoning, a property owner submitted a written proffer to the Frederick County Board of Supervisors, which the property owners thereafter orally agreed to modify at the public hearing, and then about a week after the hearing the property owners signed a written amended proffer pursuant to their oral agreement at the hearing.  The amended proffer limited the underlying by-right permitted uses of the property.

Subsequently, the developer acquired the property from the owners, and, of course, wanted to use the property for a purpose prohibited by the amended proffer, and the Zoning Administrator let them know they were not permitted to do so.  After the Zoning Administrator refused to accept a site plan submitted by the developer which demonstrated the prohibited use, the developer appealed the Zoning Administrator's decision to the Board of Zoning Appeals, which denied the appeal.  In order to get around this, the developer then appealed the Board of Zoning Appeal's decision on two basic points: (i) The amended proffer was void ab initio because the amended proffer was not submitted to the Board of Supervisors five days before the public hearing, contrary to the Frederick County Code, and (ii) that the underlying zoning district allowed the use proposed, and disagreed the proffer prohibited the use they had proposed.

Not suprisingly, the Supreme Court came down against the developer, as had the Circuit Court before them, the useful take-aways from this case being basically threefold:  (i) the Board of Supervisors can in fact reserve (and in this case had) the authority to amend proffers during a public hearing at which the proffer is being considered, and that a subsequent hearing is not necessary to memorialize an amended proffer in writing, (ii)  a Board of Supervisors clearly has the authority to modify and/or limit the underlying by-right uses through use of proffers while considering a rezoning application, and (iii) both courts did make it clear that a Zoning Administrator could not refuse to accept a site plan application proposing a prohibited use, but rather must accept the application and then deny it.

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As promised, just wanted to circle back with the results of yesterday's Commonwealth Transportation Board hearing.  It is official, the Commonwealth Transportation Board passed the actions necessary to transfer Columbia Pike to Arlington County, with assurances from Arlington County staff that they would preserve the functionality of Columbia Pike and that there were plans to do so in place.  This action is a major step for the Columbia Pike Revitalization Initiative, giving Arlington County the control it has wanted over streetscape, pedestrian, transportation, street and intersection alignment, and its street car planning.

All this comes despite the ongoing lawsuit between Arlington County, VDOT and others.

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The Commonwealth Transportation Board is scheduled to finalize the deal and take the necessary actions to convey Columbia Pike to Arlington County tomorrow, being the culmination of many years of urban and transportation planning by Arlington County, the Columbia Pike community, and the Columbia Pike Revitalization Organization.  This is in response to the Resolution passed by the Arlington County Board back in July of 2009 to acquire Columbia Pike from the Commonwealth in order to clear the way for construction of the planned street car system along Columbia Pike in Arlington County and to help realize the goals and visions of the Columbia Pike Revitalization Initiative. 

Arlington is one of only two Counties in Virginia that owns and operates its own local street system, with the Commonwealth operating the rest of the roadways in all other localities.  Once the transfer is complete it will be up to Arlington to maintain and operate Columbia Pike on its own.  Mike Estes' recommendation to the CTB is for the CTB to authorize the Commissioner to execute the transfer agreement with Arlington County this month, have the CTB transfer Columbia Pike from the Primary Road System to the Local Road System, and then in October to have the CTB approve the 2011 fiscal maintenance payment to Arlington County include Columbia Pike.  It is my understanding that the Commonwealth Transportation Board is moving forward with the transfer of Columbia Pike despite Arlington County's ongoing lawsuit against VDOT and the Commissioner of Transportation over the environmental and civil rights claims surrounding the "Hotlanes Lawsuit" (click here for my posting on this lawsuit from last year, which was updated and opined on by one of our co-bloggers last week here)

The hearing will occur down in Richmond at the VDOT Central Auditorium at 10:00, but if you cannot attend or observe here are copies of Michael Estes' presentation and the hearing agenda.  Also, here is the proposed Resolution for action by the CBT, and here is the actual proposed Memorandum of Agreement if you are interested in some of the finer the details.  We'll keep you posted on the results of the hearing, though I imagine the press releases will be flying around pretty quickly tomorrow. 

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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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