PRESIDENT’S COURT – THE MAIN ARTICLE — An Example of How Our Government Makes Flawed Development Decisions

June 16, 2013 § Leave a comment

D. DID COUNCILMEMBERS ASK RELEVANT AND APPROPRIATE QUESTIONS?

President’s Court is almost a perfect example for analyzing the workings of the Town Council and exposing its weaknesses. None of the councilmembers apparently had anything personal to gain from its approval or disapproval, it was free from normal politics, and, as far as we can tell, it was free from direct conflicts of interest. Yet, as the preceding sections indicate, the TC made far less than satisfactory decisions.

A part of the problem is the structure of the council’s decision-making process itself. The council usually has no input into the staff’s decision-making process. Normally, it gets only two chances to review the proposal and provide the input – in one work session and a public session. However, during each of those sessions, it has to dispose off a large number of agenda items. For the 18th February work session, for instance, there were 6 public hearing items, 4 presentations by the staff and/or consultants and finally a few discussion items. It would have taken 5 hours to cover the 10 items if each were to occupy 30 minutes on average. But, 30 minutes is not enough time for the staff to make a detailed presentation, and for 7 councilmembers to ask questions, discover the relevant facts, discuss the issues and reach a conclusion. Each councilmember gets only a few minutes to ask questions before making room for others. If the staff does not provide enough details, it is almost impossible to find the critical assumptions, the critical piece of data, the unvarnished background of the issue at hand, and the hidden agenda of a group of councilmembers.[12]

And, then there is also the reluctance to question the validity of a report that is the result of many months of work on the part of many. In this case, by the time, the TC began to consider the proposal, the staff had a built an impressive case record between May 1996 and February 1997. The Planning Commission had reviewed the application twice and the ARB once. The builder had negotiated with the staff from the very beginning of the application. Many decisions had already been made – by the staff alone. However, as soon as the TC began its public review, a rather spirited debate ensued. Right off the bat, three councilmembers had problems with the proposal.

Carol Bruce, Rick Thoesen and John DeNoyer were not satisfied by the staff’s representations about the density of the development. Perhaps, they should have also kept quiet, made a few crowd pleasing statements, thanked the staff for doing a good job and praised the developer for bringing an excellent development to the Town. They chose not do that. Rick Thoesen made a motion to postpone the vote by two weeks. Four of the 7 councilmembers wanted to approve the application that day, but in deference to Rick Thoesen, Mayor Rust agreed to postpone the vote by 2 weeks. What was needed was for the three concerned councilmembers to get together, find pitfalls in the staff’s analysis, and find some common ground for action at the next meeting. However, that did not happen. There is usually no time for that. Each went his own way and ultimately caved in.

They could have also made the motion to send the application back to the staff and PC, but the other four would not have approved this step in the absence of a groundswell of public opinion against the proposal. Of course, there was nobody to represent the future residents. Had they been there, they would have all protested and demanded changes to make this development a better place. Four years after the initial approval of the project, they were able to remove the exercise trail because it had the potential to violate their sense of privacy and safety. They had to turn to Tom Rust to make that happen. A year or so later, several residents could not build decks in their backyards, because the staff reasoned that the installation of the decks was in violation of the set back requirements of the code. Rick Thoesen came to know about the problem while campaigning for Mayor in 2002. One of the residents showed him the location of the deck with respect to the property line and explained the problem. Shortly thereafter, the staff approved all applications for decks that had previously been rejected. It is obvious that neither the staff nor the council had any inkling of the problems to come when the rezoning application was approved in 1997. The question is why?

The following sections describe how the TC addressed or did not address the issues that arose during the public hearing review of this rezoning case.

1. Density of the Development

During the February 18th work session, the TC had expressed its concern about the (high) density of the development. They had the sense that the proposed density was much higher than the density of the surrounding neighborhoods. They seemed to know that the average lot size was much smaller than that in the R-10 district and there was extensive discussion of the “wall” effect of placing homes too close to each other. In spite of having one week to prepare and ask more questions, the council-members were not prepared to ask even basic questions; such as,

    • Why had the staff not calculated the actual gross density of the Chandon Wood and Downs neighborhoods?
    • Why was the staff using the concept of theoretical maximum density especially when such a term did not even exist in the code?
    • Why was the staff comparing theoretical maximum density with gross density? Was that not like comparing apples and oranges?
    • Why had the staff not compared the actual gross density of adjacent neighborhoods with the actual gross density of the proposed development?

Councilmember Bruce stated that “… (when) she compares this property to the surrounding area” … “…she believes the density is too high.” Mr. DeNoyer stated rather sarcastically, “..,it appears the creativity for this particular proposal is to have as many homes as possible on one piece of land.” Vice Mayor Thoesen expressed his concerns about density in a letter to the applicant’s attorney by stating, “I don’t care what material the façade is constructed of, overcrowded density will surely have an aesthetic impact to … the surrounding neighborhoods.” They seemed genuinely concerned, but they did not ask the questions given above. As long as they were unable to do that, they couldn’t possibly understand the problem, and challenge the staff and/or the applicant’s attorney.

Others councilmembers did not seem to be particularly concerned about density. Mayor Rust, who had the background to question the validity of the staff’s assumptions, chose to act more or less like a referee. After hearing comments from the public, the applicant, and other councilmembers, Mayor Rust stated that the issue appears to be density. He asked the council to consider whether the increase in density was advantageous to the Town. Then, he tilted his hand by strongly summarizing the proffers and stating that these are some of the guarantees that the Town would not get if the property were developed under the existing zoning.(See the APPENDIX below for an evaluation of the proffers)[13]

Bill Tirrell opined that there was not much difference between 27 units and the 24 units theoretically possible under R-10 zoning. He seemed not to understand that an extra 15,000 sq. ft. of space could make a big difference in enhancing the development. Mr. Husch did not express any thoughts. Mr. Downer bought into Tom Rust’s assertion that the guarantees proffered by the developer may not be available under the existing zoning.

2. The “Wall” Effect

The developer had planned that all homes would have their entrances from a private street (Senate Ct). This meant that Town residents and visitors would mainly see the back of the dwelling units. The chairman of the ARB raised his objection by stating that, “the development appears to turn its back on the neighborhood and that while the developer is proposing a “decorative fence”, it will still be the rear of the houses facing Van Buren Street. Other speakers that day made similar comments. And, during the site-plan stage, several people requested that the view of the vinyl siding on the back of homes be limited. None of the councilmembers made any comments, or reacted to the ARB’s criticism, probably because they did not know what to make of it. The staff indicated that the ARB review at the site-plan stage could possibly take a look at the orientation of a few homes. Ultimately no meaningful action was taken to mitigate the “wall” effect and it is now likely to stay in place for 50, 100, or even 200 years? Once the damage is done, it cannot be mitigated easily.

3. Visitors Parking

The availability of parking spaces has turned out to be a long-term problem. During the TC review, however, no councilmember asked any question or expressed any concern. Even though many of them had served on the Planning Commission or the Town Council for many years, they seemed unaware of the visitors’ parking needs in such developments.

4. Dedicated, Active Recreation Area

During the TC work session of the 18th, the council asked the staff to consider taking the exercise trail out. They did not see the need for an exercise trail due to the presence of the Haley Smith Park across the street. During the public session, there was no discussion of this issue and of the need to meet the spirit of RGC zoning, that is, to provide a meaningful common recreation area. Neither did the staff volunteer that the code contemplates the use of several suitable alternatives. The councilmembers seemed much more interested in receiving higher cash proffers for town-provided off-site recreation (such as the Haley Smith Park) than in meeting the requirements of RGC zoning in good faith.

5. Stormwater Pond

Once the developer became aware that the site would receive stormwater from the Chandon Woods area and might exacerbate the already poor drainage at the site, he substantially changed the layout of the houses in the development and planned to build a small pond to manage peak flows.

Councilmember DeNoyer led the charge to ensure that storm-water management issues either had been taken care of or would be taken care of at the site plan approval stage. However, even he did not raise enough questions about the adequacy of the size of the pond. The staff and other councilmembers did not really want to discuss the size of the pond, because they maintained that the stormwater calculations are done at the site plan stage. But if any stormwater management method has the potential to affect the core development at the property it should be discussed at the rezoning stage. In this case, it so happens that the pond now occupies about 8,000 sq. ft., and butts against the rear lot lines of three homes. Had the required area been a little larger, the builder would have had to revise the GDP substantially. Most councilmembers were not aware of this possibility.

What the discussion shows is that in issue after issue, councilmembers, individually and as a group, cannot easily challenge the staff even if its report does not make sense, or when the facts do not fit together, or the analysis is plainly wrong. They generally have neither the time nor the expertise to do so successfully. A few minutes of questioning in the work and public session cannot possibly help them to understand the intricacies of the staff’s analysis unless they have strong prior experience in the particular issue at hand. In this case, three relatively strong councilmembers knew that something was wrong with respect to density, but could not find what was wrong much less lobby others to correct it. What made their task difficult is that other councilmembers did not understand the significance of the correct analysis for the long-run benefit of the town or of the future residents of the development.

In this case, none of the 7 councilmembers seem to have done enough preparation to know that the staff report was missing items that were going to be important to the future residents. These items included adequacy of visitor parking, the need for dedicated active recreation areas, and approval of decks. In spite of many years of experience on the council, the Planning Commission or other Boards in the town, they did not ask any questions. It suggests that in other cases, as in this case, if the staff fails to address important issues, the general public can never be certain that the Town Council would catch the omissions and mistakes.

APPENDIX — A Brief Discussion of the Value of Guarantees Proffered by the Builder

After hearing comments from the public, applicant, and other councilmembers, Mayor Rust stated that the issue appears to be density. He asked the council to consider whether the increase in density was advantageous to the Town. Then, he summarized the proffers and stated that these are some of the guarantees that the Town would not get if the property were developed under the existing zoning. Lets take a look a his summary:

1. Guarantee 2,800 sq. ft. minimum house plus garage

It is not clear why a house of this size brings any special advantage to a town that already contained large tracks of homes with sizes greater than 2,800 sq. ft. in many zoning districts including the R-10 districts. As it turns out, the developer used this proffer to increase the size of the dwelling units (during the site plan approval stage), reduce the distance between them, remove the on-street parking and lessened the width of the main street in the development by up to 15’. All along he wanted to make them bigger. Regardless, under the R-10 zoning, lots would have been larger; therefore, it would have been even easier to provide this guarantee.

2. Guarantee The ARB Review During the Site Plan Approval

It looks like Mayor Rust was claiming that the government’s unilateral power was forcing the developer to proffer an additional review. The government would have similar power even under R-10 zoning. It still would have to agree to allow consolidation of the three parcels, which, as this report suggests, would have accrued a benefit of at least $1 million to the builder. Therefore, if necessary, a builder would have chosen to proffer the review even under R-10 zoning.

3. 50 Percent Brick

Town residents who spoke at the two public hearings, were mainly interested in the quality of the views they would have from the Van Buren street. That meant the following: (a) no decks in the back, (b) larger separations between homes, (c) views of the inside of the development, (4) high quality fence along Van Buren Street and (5) no Vinyl siding. As far as the town residents are concerned, vinyl siding dominates their view from Van Buren and other streets. The view under R-10 might have been even better due to a better orientation of the homes. Thus, this proffer was not particularly advantageous to the town.

Mayor Rust mentioned other proffers including land for street dedication, funds for recreational facilities, and a traffic-actuated traffic light at the corner of Van Buren Street and Herndon Pkwy. There is no reason to believe that these proffers would not have been from the developer under the R-10 zoning. The project would not be possible without dedication of the land. And, contribution for recreational facilities and traffic actuated traffic light were a miniscule portion of the increase in value of the land due the consolidation of the three parcels.[14]

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