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

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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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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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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