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

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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A recently completed study by Arlington's Retail Task Force outlined some interesting conclusions for ground floor retail, suggesting something contrary to the status quo of conventional urban planning thought .  Traditionally, in Arlington County, as well as other urban jurisdictions, it has been a moot argument that good urban planning require ground floor space to be used almost solely for retail, or other similar uses that are thought to improve the pedestrian experience and serve the immediate vicinity's every-day needs.  Quite frankly, ground floor retail is simply expected by jurisdictions for almost all urban projects.

The study was a holistic review of modern retail policies that would be of value to any urban locality, focusing not just on any one piece of the puzzle, but instead on economic development/jurisdictional competitiveness, urban planning and transit goals, availability of space to both national and local retail businesses, and the cold, hard numbers that are the result of current land use policies in Arlington County.  The report concluded that "[r]egional retail destinations, including Tysons Corner, Old Town Alexandria and Georgetown are siphoning sales within a very mobile and competitive market.  Whereas Arlington’s land use policies have successfully concentrated development along Metro corridors, our 'retail everywhere' policy - the requirement for first floor retail in nearly all new development - has inadvertently resulted in producing marginal retail spaces in problematic locations...." as well as  an overcapacity of retail space.  The report provides that "[s]uccessful retail cannot be located just anywhere and everywhere. Retail needs sufficient concentrations and massing to build and benefit from synergies and to attract a solid customer base. Spreading retail away from these concentrated nodes dilutes its ability to work cohesively." 

These are a pretty dramatic conclusions, given that virtually all ground floor space of virtually every project, for the past decade or so, has been absolutely required to be retail space.  Clearly, empty retail space that cannot be filled fails to provide any of its intended benefits, and requiring "retail everywhere" may very well have had the opposite of its intended effects.  Empty retail space is not good planning, and is hardly engaging to the pedestrian.  Clearly, nobody wins when space sits empty.

So what does the report suggest as solutions?  Here are the recommendations in a nutshell: (i) focus retail uses in planned retail nodes that provide the convergence of transit/accessibility options (including both walk-ability, transit, and yes, convenient parking), retail density, and retail business mix necessary for sustainable retail success (ii)  broaden the definition of "retail" in the Zoning Ordinance to allow not only classical retail uses, but also other uses that would achieve and/or compliment the same intended planning and economic results, such as studio and service uses, etc., (iii) allow additional flexibility for signage necessary to allow retail businesses to succeed, and (iv) allow more flexibility in first floor building design during the County's special exception processes so that tenant space is more readily and efficiently adaptable to attract prospective tenants.

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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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Virginia Delegate Mark Cole is up to it again, proposing another amendment to the business, professional and occupational (“BPOL”) tax laws. Delegate Cole sits on the House of Delegates Finance Committee, and represents the 88th District, spanning Stafford, Spotsylvania and Fauquier Counties and the Town of Remington. As you may recall from my last blog post on proposed business tax reforms in the Commonwealth, he sponsored HB 57, which would freeze BPOL tax rates, and prohibit those localities that do not have a BPOL tax from imposing one.

Currently, the BPOL tax is targeted at a business’s gross receipts, defined by Virginia Code Section 58.1-3700.1 as a company’s “whole, entire, total receipts, without deduction.” Delegate Cole’s proposal, HB 110, would allow localities to decide whether to impose their BPOL tax on a business’s gross receipts, or on its Virginia taxable income.  HB 110 provides two methods to calculate "Virginia taxable income," depending on which is applicable to the business -- a calculation under Virginia Code Section 58.1-322 (Virginia taxable income for residents) or under Virginia Code Section 58.1-402 (Virginia taxable income for corporations). 

Undoubtedly, localities may be skittish of these changes in the face of some very hard economic times and dwindling local budgets. However, businesses should view HB 110 as a welcome change to take the sting out of what many consider to be the harshest aspect of the BPOL tax – the notion of taxing gross receipts with no ability to consider adjustments or deductions.
 

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Wading through the various layers of requirements, enticements, incentives and regulations that apply to green building can be overwhelming to anyone, let alone the uninitiated.  This process is made far more complicated by adding the layering of federal, state, and local government efforts in this field.

The United States Green Building Council has this effort very easy with regards to LEED related public policy searches.  USGBC has a search engine with multiple selectable criteria to sift through the oceans of regulations to find what you are looking for.  I cannot say the entire database is perfect, but I can say that it appeared that the Virginia state and local discussion was basically accurate, including the status of the green building ordinances in Arlington County, Fairfax County, and the City of Alexandria.

USGBC naturally has an interest in promoting the USGBC's interests with its efforts and these tools are no exception.  The only pet peeve I have is that some of the commentary seems to slant the discussion entirely towards LEED standards without a recognition of the role other standards may play in these regulations.  For example, the USGBC description of the City of Alexandria policy states,

On April 18, 2009, the Alexandria City Council adopted their Green Building Policy requiring all new municipal buildings to achieve LEED Silver certification and all new commercial buildings to achieve LEED Silver certification. The policy also requires all new residential buildings to be LEED Certified with the intention of increasing the standard over time.

In reality, the City of Alexandria policy expressly recognizes the ANSI approved ICC-700 2008 National Green Building Standard for residential construction.  The ICC-700 standard was developed by the National Association of Home Builders in partnership with the International Code Council.  The City's overall adopted standard further provides that while LEED is typical, to the extent equivalent rating systems are available and can be demonstrated as equivalent to the Director of Planning and zoning, they are also acceptable.

That limited comment notwithstanding, the USGBC search engine is a great free tool to dig out federal, state and local requirements.  Careful and prudent use will require clicking through to the underlying source links and maybe digging a bit for confirmation, but used carefully the search tool can save a ton of time and effort.

Image by Timothy Valentine

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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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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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The Supreme Court of Virginia recently accepted a Petition for Appeal by forty citizens of Gloucester County who were hit with sanctions for circulating a petition for signatures and filing the petition with the Circuit Court for Gloucester County to have some members of the Board of Supervisors removed by the Circuit Court.  These citizens circulated the petition per § 24.2-233 of the Code of Virginia, gaining over six thousand signatures, after a grand jury indictment of certain members of the Board of Supervisors.  After appointment of a special prosecutor, the trial court nonsuited the petition proceedings, ordered Gloucester County to pay for the legal fees incurred by the Board of Supervisors, and then imposed two thousand dollar sanctions on each of the forty citizens who circulated the petition. 

According to the facts set forth in the Petition for Appeal, two new members were elected to the Gloucester County Board of Supervisors in 2007, providing one voting bloc with a new majority of votes.  Among other things, upon being sworn in the members of this new controlling voting block promptly announced the termination of the then current County Administrator and the County Attorney.  This was apparently not discussed with the minority Board members, or announced to the public prior to their action to do so.  Upon learning this, the Commonwealth's Attorney for the county began an investigation and a grand jury was ultimately convened, which returned criminal indictments for the four Board members.

Generally speaking, § 24.2-233 provides a procedural avenue for citizens to have elected officials removed from office by the local circuit court for misuse of public office.  However, until July 1 of this year, § 24.2-238 did not have a Subsection B, which now explicitly prohibits the imposition of the aforementioned sanctions.  While there are several other arguments that have been made why sanctions should not be imposed, the Petition for Appeal begs the general question whether the judicial branch may impose sanctions on citizens who organize and petition the government where sanctions are not expressly statutorily prohibited.  What does Virginia want to discourage more: arguably wasteful and distasteful mass petitioning movements or the judicial branch's authority to suppress such petitions?

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Scott McCaffrey of the Arlington Sun Gazette reported yesterday morning that the Arlington Professional Firefighters and Paramedics Association has filed the necessary paperwork (click here to view the Certificate of Receipt and Acceptance Local Referendum and the Statement of Petitioner for Local Referendum) with the Circuit Court for Arlington County to begin the petition process for a ballet referendum to change the system of government in Arlington County from a County Manager form of government to a County Board form of government.  Apparently, the Arlington Coalition of Police is planning on backing the petition as well.

The Code of Virginia authorizes counties to change from one optional form of government to another optional form after approval by voter referendum. This requires: (i) a court order allowing the referendum, (ii) that the court order state the question that will appear on the ballot, (iii) the election must be held within a reasonable period of time after the request, and (iv) that the court has to set the election date.

Such a court order may be obtained by a petition filed with the appropriate circuit court and must be signed by at least ten percent of the voters of the county (as determined by the number of voters registered on January 1 of the year of certification of the petition); however the Commonwealth of Virginia Board of Elections suggests obtaining signatures from an additional five percent of the voters to ensure there are no questions about having obtained the necessary number of signatures. All the signatures must be obtained and the petition re-filed with the Circuit Court within nine months of the original filing.

As most people in Arlington County know, under the County Manager form of government each County Board Member is elected “at large”, the County Board members elect their own chairperson, and instead of there being an independent executive branch of government, the County Board hires an “at will” County Manager as the County’s executive officer. 

Under the County Board form of government being proposed, the major difference is that there would be a Board of County Supervisors consisting of one member elected from the county at large and then one member would be elected from each magisterial or election district in the county once election districts are drawn. However, the board would continue to elect its chairman from its membership.

Also, pursuant to the proposed County Board form of government, there would not be a County Manager, but rather the Board of County Supervisors would hire an “at will” County Administrator which would serve with less powers than a County Manager, with many of the former County Manager’s authorities being exercised by the members of the Board of County Supervisors.

Some commonly acknowledged shortcomings of the County Manager form of government, including lack of normal checks and balances between separated branches of government, have been what has been perceived as the disenfranchisement of minority interests in Arlington County political processes and concern about an exclusive, perpetual one-party system.

Proponents of the current County Manager form of government laud its capacity to maintain continuity of County-wide objectives and believe that it enables county government to actually get things done without the political interruptions you would find in a system of district fiefdoms or another more classic system of checks and balances between branches of government.

It remains to be seen whether this petition is in response to budget decisions being made and a deal will be worked out in that context, or whether it goes in another direction.

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