Thursday, December 01, 2005

Why Can't Albemarle Just Say No?

Nice article here by the Daily Progress about a court fight between Albemarle and a developer that has implications for local growth-control powers. In a nutshell, a company seeking a site plan approval for a development project was turned down by the county in part because of the impact that the project would have on local roads.

The county attorney advised the Board of Supervisors last year that including the road-impact factor was invalid, but the board unanimously rejected the project. So they're being sued.

'Circuit Judge Paul M. Peatross Jr. said he would look over the evidence and "make a decision promptly."

If he rules in favor of Faulconer [Construction Co.], the board would be forced to exclude that condition from its review of the facility. If he rules in favor of the county, it would be a landmark decision that gives local government the power to make a decision based on the adequacy of a development's surrounding infrastructure, local officials said.

... Supervisor Sally H. Thomas, whose district includes the site, said she thought the board's decision to reject the site plan was sound. "It was for the protection of the health and safety of the county," she said. "What this court case is about is whether the Dillon Rule trumps the health and safety of the people."'


At 10:52 AM, Blogger Jim Bacon said...

I wonder why it has to be an either/or situation. Why can't Albemarle County do something like Fairfax County has done with Pulte Homes: Negotiate with the developer to create a development with a lower trip-generating footprint?

In Pulte's case, the County had something tangible to offer -- higher density -- in exchange for a low transportation-impact development. If the developer in Albemarle is simply seeking approval of a site plan, and not asking for a rezoning, the County may not have that leverage.

But we need to recognize that not all development is created equal. Different designs, densities and locations have widely varying impact on the transportation system. Incentivizing developers into designing smaller traffic footprints needs to become a part of every County's planning toolkit.

At 10:55 AM, Blogger Steve Haner said...

"One possible hurdle for the county is the Dillon Rule, established by a 19th-century judge and adopted in Virginia, which prevents local governments from making decisions not expressly granted to them."

It is not a possible hurdle, it is the hurdle, and this is what the Dillon Rule is all about -- and what the long-debated issue of adequate public faciliites laws are is all about. One newspaper article doesn't give all the facts one needs to be sure, but if the county prevails at the circuit level I'd expect a prompt appeal.

How about an adequate public facilities law that says the county MUST build the facilities adequate to support its comprehensive plan and zoning, rather than a law that says that a county's REFUSAL to build those facilities negates the property rights of an owner who has the funds and the vested legal right to proceed?

At 11:43 AM, Blogger Ray Hyde said...

Whether Pulte can actually meet the transportation goals is still mostly a matter of smoke and mirrors and sly definitions. Just as we disagee on the meaning of CRA numbers, you can be sure that there will be disagreement over whether Pulte succeeds.

It won't matter in a few years, the development will be built and the conditions will have changed. There will be no objective way to determine retroactively if the plan succeeds over time. Whatever the result is, we'll be stuck with it for decades. This is why I say no one knows how to link transportation and land use.

We can't very well have developers running the government's capital improvement program, unless they are also providing most of the money.

We can't very well say to landowners, you cannot ever do anything, because we won't support you. We can't even say your land is scheduled for development in thirty years. If the landowner is providing planning and infrastructure cost savings to the government by standing in the queue for services, then he is effectively loaning the govvernment money. And if he is thereby providing the opportunity for profit to those ahead of him, if he is providing open space for the benefit of others, then he deserves some consideration from the community.

If everyone who is not scheduled for services is getting compensated for standing in line (for the public good) then the queue is likely to be long. Even if the compensation is small, the cost savings for, compact, planned, manageable, and orderly provision of services may be smaller than expected or even disappear.

Gated communities and private roads are one way to throw more money into the pot of progress, but they may not work to the public benefit.

There will be lots of lawsuits.

At 1:17 PM, Blogger Bob Burke said...

I kind of like Steve Haner's version of an APF. Imagine how that would change the writing of a comprehensive plan, if localities knew they were on the hook for the infrastructure. We'd see a lot less overzoning.

At 2:37 PM, Blogger Ray Hyde said...

But I thought you said density was a matter of perception.

More density in the right place is good. Who gets to set the standard for what is the right place?

I keep saying, some people think linking transportation and development is a blank check, others think it is a strategic stalemate. They can't both be right.

We are 240,000 homes short now, just in NOVA and in ten years it might be 600,000 short.

Where are they going if every jurisdiction can say NIMBY?

At 2:58 PM, Blogger Bob Burke said...

Not sure I get your point there. The overzoning is a great topic, if you like watching the whole $*#& go up in flames.

Localities that are swamped now with residential growth and school bills they struggle to pay point the finger at county supervisors from a generation ago who zoned too much land for development. So that's who got to set the standard.

At 4:39 PM, Blogger Ray Hyde said...

I don't understand either. I was referring to your posts under "is this anyway to build a highway", where you say Fairfax has plenty more room, and TMT says it is overzoned.

Here, you seem to say the opposite. If we use APF to prevent overzoning, and if it turns out that Metro West and re-developing Tysons are a transportation disaster, then it seems to me that we will necessarily see something like what you call building McMansions all the way to West Virginia.

If communities know they are on the hook for facilites in their comp plan, they'll just make a comp plan for slow growth. there are now more than 11,000 communities with some kind of growth regulations in place.

But as you say, the growth is coming, right now it is sitting in all those new overcrowded schools we built. If past history is a guide, a more than proportional share will come to Fairfax.

Like you say, we are stuck with decisions made by past Supervisors. But the planners among us now say that we can plan things perfectly, so that we can use density to eliminates crowding, traffic, and pollution. I don't see any evidence that we are better at it now than then.

It will probably be some of both.

Despite what EMR thinks, I'm in favor of land conservation and new urbanist planning. I just think he is doing a major disservice to the cause by packaging the plan in a way that has no chance of succeeding, and no real economic basis.

I frankly don't believe that the design of a development has much to do with the trafic it generates. Jobs change faster than homes, schools get redistricted, people get married,and who knows if the populace will drive to the Nissan Center or Metro to the mall? Too many variables.

But he is right when he says that developers will have to be incentivized to get them to build anything other than what their experience says will sell. Where will the incentive money come from? Where will the incentive money come from for affordable housing? That's what I mean when I ask about the economic basis. That's why I poked fun at all the "free" stuff that was supposed to incentivize Metro West residents.

As TMT put it, what's in the equation for the ordinary residents, the ones not blessed with the profits of growth? Remember, their own presence is the result of some prior fortunate happenstance of growth that somebody profited from.

At 7:55 AM, Blogger Bob Burke said...

The problem with low-density residential overzoning is the scattered development it produces. It makes a place seem 'full' when, under a different development pattern, it could consume a lot less space.

The only certainty that places like Fairfax face is that a lot more people are moving in. So where to put them? Answer: raise the density. But what about the supply of affordable housing? Answer: raise the density.

At 9:27 AM, Blogger Toomanytaxes said...

It's not a matter of density versus sprawl in Fairfax County. One problem is that the County's infrastructure cannot support today's population. The other (and bigger) problem is that our elected officials refuse to acknowledge this situation as even existing. They simply pretend that greater density, public-private partnerships, more money from Richmond, a tax increase, extending Metrorail to Dulles, HOT lanes, etc., etc. will allow business as usual to continue. Look at Gerry Connolly and Delegate Jim Scott's joint remarks to Governor-elect Tim Kaine's recent transportation meeting -- a total abdication of responsibility and leadership!

Someone needs to step up and say: "Fairfax County has grown well past the capacity of its infrastructure and there are no quick fixes. Moreover, for many reasons, there are many people in the county who are being harmed by growth, just as there are many other people here who benefit from development. The interests of both groups must be addressed. No more business as usual."

Someone also needs to say: "Virginia, we are your cash cow, but it is becoming increasingly clear that too many of us are paying a high price for the growth that pours millions and millions into Richmond and that the cash cow has eaten just about all of grass in the pasture. Some people in NoVA don't want to spend the money to buy the hay to feed the cash cow. Are you willing to help solve these problems?"

Problems cannot be fixed unless and until they are acknowledged.

At 1:06 PM, Blogger Ray Hyde said...

Bob, finally we agree. Maybe I'd like to build a couple of modest rental units on part of the farm I can't use anyway. Can't do it: I'm restricted to 50 acre lots. As a result, when rising prices and costs, or some other life event forces me out, the whole farm will go at once. Bad idea.

If you unbridle the developers and let them build at any density, they will build at the density that maximises profits. As multiple developers do this, they will tend to overbuild somewhat, and prices will fall. That does not mean the cost of living will fall, which is what affordable housing is really about. There are many other costs associated with living in Fairfax, which some people will choose to avoid.

What we see instead is that developers will be required to provide some affordable housing units as a quid pro quo for higher density. This way the government can try to mollify people like TMT who don't want more density by saying they are looking out for the little people and the public good. The price of those units just gets tacked on to the price of the other units.

This is not increasing density, it is selling density. EMR says we can increase density essentially for free, but TMT says our infrastructure is already overburdened and more density is going to cost a fortune. Bertrand Russell once observerd that there were many religions, each claiming to be the one true faith. "At most, one of them is correct."

In Fairfax, even more than other places(except northern Fauquier and southern Loudoun where the truly wealthy choose to live), we see an increasing difference between the wealthy and the poor. The wealthy will consume more and larger spaces at higher prices leaving less available for the poor, and at higher prices. The poor, having no price elasticity will necessarily go someplace else.

Otherwise, the poor will be subsidized by the rest. This doesn't mean that housing is more affordable, just that the poor are getting paid more. Those costs are distibuted among everyone else in the form of more expensive housing and or higher living costs.

What is really going to lower living costs in Fairfax is competition from other places: either the District, as it gets re-built or from places farther out.

If you are going to increase density, then the current thinking is that you need to link that to transportation and other infrastructure. There is a limit to how much density you can support and rely on the automobile. But other means of transit are much more expensive and/or provide lower levels of service.

If you look at the Zip-car locations, they are all adjacent to the metro lines: suggesting that Metro provides inadequate level of service. 40% of zip car users use cars less than previously, and 30% use cars more than previously (couldn't afford one?)Again, suggesting that transit alone is insufficient.

You can't apparently get entirely away from car use: even in new york transit is a fraction of all trips. Therefore there is a density limit of some sort, first of all, and if density itself lowered living costs, then New York would be the cheapest place to live.

At 11:12 AM, Anonymous Brian Wheeler said...

As current President of the Ivy Community Association, I have been one of the community leaders opposed to the Faulconer Construction project since 2001. A little history... this is a heavy industrial contractor trying to move into a light industrial business park. Granted that is my opinion on heavy vs. light and the Virginia Supreme Court refused to hear our appeal of the original zoning decision. Thus with our legal options exhausted, we focused as a community on the details of the now "by right" site plan review. One major concern of the community's is the size of their construction vehicles on a road filled with children being dropped off at school and school bus traffic. In addition, their slow moving oversized loads would be pulling out at a blind curve on Route 250, the location of a number of fatalities over the years. Thus, while this is not a rezoning request and there is less discretion for the locality, Albemarle County has an interesting part of the zoning code that we encouraged the Planning Commission and Board of Supervisors to hang their hat on. As a result, both bodies rejected the site plan (citing 8 conditions, 1 related to off-site issues) and thus Faulconer appealed to the Circuit Court.

This part of the zoning code is seldom looked at because it isn’t very often that a new industrial site is opened adjacent to an elementary school and a preschool on a narrow country road, one so narrow VDOT won't even put side or center stripes down. The zoning code is very logical and it says the County must consider the off-site impacts of any applicant trying to operate in any industrial park. Industrial activities can have noise pollution, light pollution, air pollution, truck traffic, hazardous materials, etc. The site plan review is when local government should be able to say “Wait. While our Zoning Administrator said your business was light industrial back before you gave us a site plan (i.e. her decision was not site specific), now that we see what you want to do and we have more information, we have concerns that this activity can’t harmonize with your neighbors, you need to make changes.” Albemarle did not ask Faulconer to make off-site improvements. The changes might be to have smaller trucks, only use it for an office, or look at other light industrial sites, etc. If Albemarle can’t question whether a site plan proposes activity that will be in compliance with this industrial zoning ordinance, then we have a major problem in Virginia and someone in Richmond is going to have to fix it.

Brian Wheeler

P.S. The whole reason Faulconer is looking to move to this property in Ivy outside Charlottesville is VDOT bought their existing site in the US 29 Western bypass right-of-way.


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