DERELICTION OF DUTY, OR, WHAT? Approval Of The Vine Haven Development

May 3, 2014 § Leave a comment

By

Jasbinder Singh

Development plan:  VINEHAVEN – TC ZMAP

Vine Haven development was approved by the Town Council in February 2013 by a vote of 5-2. The majority led by the current Mayor, Lisa Merkel. Councilmembers Olem, Wolf and Jonas along with the Mayor made well-prepared comments supportive of the development.1 Their comments suggest that they were not pleased that Vice Mayor Hutchinson and Councilmember Waddell were raising questions, among other things, about availability of visitor parking, the high density of the development and the exceptions being granted to the developer. The Mayor and Councilmembers Olem, Wolf and Jonas asserted, among other things, that (1) all previous seven votes on this development had passed unanimously, (2) the councilmember who had the most concerns about density had made no prior comments, (3) it was not fair to the developer to raise issues at this later hour, and (4) the campaign contributions made by the developer to their group were legal and should be discussed only in a future election campaign.

This article examines their assertions by examining the case record closely and contends that what is important to ask is not why Vice Mayor Hutchinson and Councilmember Waddell were asking questions, but why Mayor Merkel had not been engaged in previous 8 months to address the density and other issues.

A. THE APPROVAL OF THE LAND PURCHASE CONTRACT

The contract for the sale of Town land, approved by the 2010-2012 Council in November 2011, contained the following provisions:

1. Per Lot Price: The contract stated that, “As the purchase price for the Property (the “Purchase Price”), Buyer shall pay to Seller $114,000 per lot (emphasis added). Based on current plan of 18 lots, the total Purchase Price is $2,052,000.”

Accordingly, if the Town were to reduce the number of lots during the review process to, say, 15, then the Buyer would pay only $1.71 million for the property. The Town, therefore, was in a position of making tradeoffs between the total purchase price and the quality of the development.

2. Layout of the Dwelling Units and Adequacy of Parking Spaces: The initial layout (submitted as a part of the contract (Page 2 of the attachment) suggested that (a) the exit (from the development would be on Vine Street, (b) 13 visitor parking spaces would be provided, (c) each dwelling unit would have one or two off-street (garage or surface) parking spaces, and (d) the lots would be of relatively equal size. Although, the contract did not say so, the development was supposed to be restricted to 50 years or older persons. The number of off-street parking spaces proposed for each unit, conformed to the age-restriction. The developer’s website also indicated that the dwelling units would not have any basements.

Thus, even though the 2010-2012 council approved the contract, it left the terms substantially flexible. The design of the development changed substantially in 2012, well before it was approved in February 2013.

B. TOWN MANAGER, NOT THE MAYOR, TAKES THE LEAD

The developer held several meetings with existing neighbors on Grace, Vine and Center Streets to address their concerns. Pursuant to the discussions, the proposal went through two substantial changes.

First, the entrance to the development was shifted from Vine Street to Center Street. Second, the builder proposed to construct three houses that would face Vine Street. Consequently, the development no longer had sufficient land for building 18 homes as originally proposed in the Contract. The developer proposed to build 16 homes, but the Town Manager asked the builder to create 17 lots. He wanted to maximize the revenue the Town would receive by selling the land (The price per lot was fixed at $114,000). Consequently, the final configuration (Pages 3 & 4 of the attachment) has the following characteristics:

  • Some of the lots had to be narrow and long to accommodate reasonably sized homes (for example, lots 6, 7, 8, 13 and 11). The developer “bent” the private road toward Center Street to create long and narrow lots.

  • Lots 1, 17, 16 would have their foot entrances from Vine Street, but car entrances from the private street in the development. These homes would hardly be a part of the development.

  • People living in houses built on Lots 2-7 would have an unpleasant view of cars parked in the back of homes located on lots 11-15.

  • The development would be left with only 4 guest parking spaces. Consequently, many visitors would have to park on Center Street or in the municipal parking lot. Consequently, fewer spaces would be available to the existing Town residents.

  • It would be possible to reach the house on lot 10 only by a narrow road that is located between lots 9 and 10 and hooks around the top of the lot 10. (A rather awkward arrangement at best)

  • Front porches for many houses could be built as close as 5 ft from the lot lines.

  • It would not be possible to build private decks in the back of the houses.

  • The development would have far fewer trees and green spaces than proposed originally in 2011.

The planning staff followed the Town Manager’s lead and wrote regulations or provided exemptions that made it possible to build 17 units on this property.

If the Town had accepted the builder’s proposal to create 16 lots, it would have received $114,000 less in revenue, but the design of the development would have been far better. It would have accommodated more trees and sufficient visitor parking spaces. And, the spaces along Center Street would have been available to our residents in the future.2 The approval of still fewer lots might have resulted in an even better design of the development.

When the changes were being discussed, no one from the Council was “present at the table” to make necessary trade-offs or to provide guidance to the staff. The Mayor was not engaged at all, according to the Town staff. There is nothing in the record to suggest otherwise. She allowed the Town Manager to take the lead.3

During the public hearing on February 26, 2013, neither the Mayor nor her allies mentioned even a word about the drawbacks of the proposed development. They probably weren’t even aware of them. If they were, they chose to ignore them.

C.    HERITAGE PRESERVATION REVIEW BOARD’S CONCERNS ABOUT THE DENSITY OF THE DEVELOPMENT

On December 24, 2012, the HPRB provided a summary of its evaluation to the Planning Commission. Generally, the HPRB had a favorable view of the presented architecture, including the size and scale of the homes; however, it expressed several reservations including the following.

The Board “…expressed a general uncomfortability with the density of the project, as proposed. The maximized lot coverage, number of lots, and close spacing of the houses are not typical of applications that have been reviewed by the Board in the past…” (emphasis added)

The Board also “…expressed concern over a monotonous feel to the project…” The Board further suggested that, “…if the proposed lot orientation or setbacks are dictating use of a certain model, less uniformity might be achieved by introducing additional models or redistributing, more substantially, the massing of existing models.

These deficiencies could have been rectified to some extent by reducing the number of lots to less than 17; however, the Planning Commission, according to the staff, approved the development without recommending any changes.

The case record contains no information on whether the Mayor was aware of the reservations expressed by the HPRB or whether the PC communicated HPRB’s concerns to the Mayor. What is clear is that the Mayor took no action to address the concerns raised by the HPRB. Based on reliable information, it is believed that she was not engaged.

D.    PATTERN BOOK AND DENSITY

The Mayor’s comments suggested that Hutchinson and Waddell should have raised the concerns about density of this development when they voted to approve the Pattern Book. However, the Pattern Book had little to do with the density of any development. Its main purpose was to define size standards for (a) single-family residential lots, (b) side, front and back setbacks of the building from property lines and (c) building heights. A cursory examination of the Pattern Book suggests that the development with far fewer lots would have met its standards. Therefore, it was unnecessary for Councilmembers Hutchinson and Waddell to raise questions about the density when they voted to approve the Pattern Book.

E.    ABSENCE OF DISCUSSION ABOUT POLICY ISSUES

Vine Haven was the first project that was initiated after the approval of the Downtown Master Plan. It was bound to raise many new policy issues (in addition to several that always crop up during the approval of new developments). The staff report and other case documents included discussions of issues pertaining to:

  • Deviations from the approved Downtown Master Plan

  • Change of the stated target age-group (for the development) – from over 50 years to include all ages

  • Modifications from the zoning requirements

  • Adequacy of side, back and front set backs

  • Heights of the buildings

  • Maximum building coverage

  • Amount of impervious surface

  • Amount of green space

  • Amount of Visitor parking

  • Allowance for undergrounding of the utilities

  • Dedication of street frontage

  • Use of sound buffering windows

  • Frontage on public (vs. private) street

  • Amount of Parks and Recreation allowance

  • Location of the entrance to development

All of these issues had the potential to affect the density of the development or to set precedents for future development of the downtown. The staff did its best to address them before the TC met in the work and public sessions. Except Councilmembers Hutchinson and Waddell, who raised a few issues, none of the other councilmembers questioned the staff’s analysis. They were in no mood to discuss policy. In other words, future councils would have little or no basis to make their decisions.

In fact, reliable sources tell us that long before the proposed project began to be changed after the 2012 election, the Mayor had put up the posters of the proposed development on the walls of her office. This action had given a clear signal to everyone that she was going to approve the development without engaging in substantive discussions. The question is why? Was it just benign neglect or was it just her style to let the staff do all the work without providing input (and then have the TC rubber stamp the recommendations), or was she influenced by the financial contributions given to her group by the developer prior to the election?

F.     DEVELOPER’S OFFER TO “HELP WITH THE CAMPAIGN” AND “MAKE CAMPAIGN CONTRIBUTIONS”

On March 5, 2012, two months before the 2012 town election, Beth Clifford (the developer), sent an email to Councilmember Connie Hutchinson with the following message:

I’d like to help you in your campaign both in task that you might need to get done and also a donation, please advise how I might proceed.

Ms. Hutchinson replied as follows:

Thank you for the offer, but it would not be appropriate, given that you plan to request a rezoning. I hope you understand.”

Informed sources tell us the then Councilmember Bill Tirrell also received a similar offer and he, like Ms. Hutchinson, also declined the developer’s offer.

The campaign finance report filed in 2012 by “Herndon Voices” indicated that the developer contributed $1,000 to this PAC and that Herndon Voice contributed $500 each to Sheila Olem and Melisa Jonas whose respective campaign reports showed that they had received the money. The then Vice Mayor Lisa Merkel’s report, however, indicated that Herndon Voices had also given her $142.4

During the public hearing (for the approval of the final development plan) on February 26, 2013, the Mayor and the three councilmembers, when confronted with the contributions, did not deny receiving the money. The Mayor has the reputation for exercising complete control over events that affect her; therefore, it is reasonable to believe that the developer had offered Lisa Merkel or her group the money and that she directed the developer to contribute $1,000 to Herndon Voices. A reliable source has told us that, like many PACs, Herndon Voices was created precisely to hide the source of contributions to the candidates.

During the 2013 hearings, Ms. Merkel claimed that she had asked the Town Attorney whether the contributions were legal. It is reasonable to ask, “If she had not taken any money, then why did she ask the Town attorney for legal advice?” Further, if she did not receive any money, why did she ask the Town attorney for legal advice on behalf of her team members? Or, did her team members participate in discussions with the Town Attorney?

The Town Attorney, I believe, should not have given any opinion about the legality of the contribution for several reasons:

  • He has often stated that his client is the Mayor and the Council and he serves at their pleasure. Consequently, he has a direct conflict of interest himself.

  • He is not an expert in campaign finance law. By all indications, he is not a criminal law attorney either.

  • He could not possibly have conducted a thorough investigation of the facts of the case by administrating oaths, taking depositions and examining the facts surrounding the contributions.

Notwithstanding the fact that the contributions may have been legal, they certainly were unethical. In this case, the application for zoning was pending and the Council was expected to grant the builder many exemptions from the zoning regulations or create new regulations that were consistent with the proposed development.

That was in 2012. The developer made a larger contribution in 2014, unfortunately. The Mayor is still arguing about the legality of the contributions. She does not seem to have any concern about the ethics of the contributions or about the appearance of the conflict of interest.

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FOOTNOTES

1 They even seem to have asked their own political supporters to either testify in person in support of the development or send in supporting comments electronically. Thus, they made sure supporters were not drowned out by the opponents, if any.

2 It is worth noting that cost of providing parking spaces along Center Street or in a municipal garage or in a municipal lot would be quite substantial, and, may under some circumstances exceed the additional revenue received by creating an extra lot. In the final analysis, even from a financial point-of-view, it probably was not prudent to create the extra lot.

3 The Town Manager, by insisting on creating 17 lots was trying his best to maximize the revenue for the town. That is his responsibility; however, it is the Mayor’s (or, the Council’s) responsibility to make the necessary trade-offs between the revenue and the quality of the development. When the developer proposed fewer lots, the Mayor should have taken notice and asked some questions.

4 In 2013, Ms. Merkel apparently revised her report to indicate that she received no contribution. In reality, I believe that these allocations were arbitrary. Lisa Merkel, Grace Wolf, Sheila Olem and Melissa Jonas had run a joint campaign and shared all expenses and receipts. There was no easy way to determine who paid how much; therefore, the allocations, more likely than not were arbitrary.