Herndon Opinion by Jasbinder Singh and friends

FOOTNOTES

[1] Based on Fairfax County’s 2001 property assessment records, the 27 properties (under RGC zoning) had a combined land value of $2.16 million. Had the zoning been R-10 zoning, the land would probably have been valued at less than $1.5 million. And, had it not been assembled and improved, its value would have been less than $500,000. Therefore, the developer had realized a net gain of between $1 million and $1.6 million just by assembling the lots. He would earn even more profits by constructing and selling the units.

[2] A developer could meet this requirement by reserving 26,000 square feet of space for (1) Tot Lot or playground, (2) Basketball, half court, (3) Tennis court, (4) Club house, interior exercise room, (5) Sport field, Community vegetable garden area, and (6) paved or wood chip trail.

[3] On May 21, 2001, all of the initial purchasers of homes urged the Town “…to waive the construction of the said trail and exercise stations behind our homes…”, because “… it will jeopardize our privacy and may invite non-residents walking behind our homes that may lead to crimes.”

[4] It appears that theoretical maximum density conceptually is akin to net density. If the area occupied by highways, streets, parks, stormwater management structures, tree protection area, etc. is considered “dedicated” (in conformance with the definition of net density above), then theoretical maximum density would be equal to Net Density.

[5] The results would be far worse for the developer if we make the comparison by using “Net Density” as the criteria. In this case, the developer had to set aside 105,000 sq. ft (or about 2.4 acres) of the land for a private street (50,000 sq. ft), storm-water pond (8,000 sq. ft.), active recreation (21,000 sq. ft), dedicated public right-of-ways (14,000) and tree protection (12,000 sq. ft.). In effect, it had about 3.8 acres of land for constructing the dwelling units. Thus, the “net” density of the approved plan was 7.1 units/acre (= 27/3.8) – far higher than the comparable density of about 4 units/acre in R-10 districts. If net density had been used as a criterion, the developer would have been able to build only 15 units.

[6] It appears that the staff intentionally misled the TC and others in at least two ways. First, while it told the Town Council that 24 R-10 units could be built on this property, its own analysis had shown that, at best, only 16 R-10 units could be built at this site. The record shows that it had repeatedly used this estimate (16 R-10 units) to extract more cash proffers from the developer. Second, while it had asserted to the TC that R-10 zoning would result in several driveway cuts along Van Buren Street, it had drawn at least one layout that showed that only one cut along Van Buren Street would be necessary.

In its February 4, 1997 report, the staff indicated that “The requested RGC zoning will permit approximately two times as many dwellings as the current R-10 zoning would allow with the property’s current configuration.” However, this statement was made in the context of the town’s demand for higher cash proffers.

[7] This statement is at variance with the current off-street requirements of the code which state that for single family units the requirement is “Greater of 2 per du or one per 1,000 square feet of floor area.” This requirement reflects the recognition that parking needs tend to be directly proportional to the size of a single-family home and also takes into account the increasing vehicle ownership of households.

[8] The developer was able to reduce the street width to 24 ft, because it had proposed to designate Senate Court a “private” street (rather than a public street). The effect of the designation was to enable the developer to make the dwelling units a little larger and meet the off-site parking requirements.

[9] The elimination of the parking along the entire length of the street, however, made this development “incompatible” with the adjacent R-10 neighborhoods. In the two adjacent R-10 districts, Chandon Woods and the Downs, convenient on-street parking is available along the entire length of local streets. In this neighborhood it is not.

[10] Although the intent of the R-GC zoning is to “…encourage an opportunity and incentive to the developer to strive for excellence in physical, social and economic planning…”, it has the following specific objectives: (a) The reservation of adequate permanent common open space for the use of the residents; (b) The setting of buildings, to take maximum advantage of natural and manmade environment; (c) The separation of pedestrian and vehicular traffic; and (d) An orderly and creative arrangement of these dwellings with respect to each other and to the entire community. This statement does not require a builder to build houses of certain materials or have certain kind of design. Notice that the comments by the ARB conformed to the intent and objectives of the RGC zoning, but those of the staff violated this spirit.

[11] Architectural Control Districts are used only in Commercial and Industrial area to ensure that ghastly and ugly buildings are not constructed. As such the zoning code does not permit the staff to apply this designation to residential developments; however, when it deems it necessary, it forces a developer to proffer that this designation applies to the proposed development.

[12] For instance, in this case, it took me several exasperating days to find out that the staff had incorrectly compared the gross density of the proposed development with the maximum theoretical density of R-10 districts and that the staff had not calculated the actual gross density of the adjacent neighborhoods. One does not expect to find such mistakes in the professional world. Only in academic world does one use such tricks to fool others or to set up difficult riddles. The need to find the mistake arose because the staff kept maintaining that the density of the proposed RCG zoning (in which 31 houses were packed together) was not that different than that of the adjacent R-10 zoned neighborhoods. Well, almost everyone, who had reviewed the GDP and seen the R-10 districts knew that this assertion by the staff was not correct. As the following discussion shows, only three of the 7 councilmembers sensed something was wrong, and “kicked a little dust”, but could not solve the puzzle in the time available. As a result, the public interest suffered and Town will bear the consequences so for perhaps the next 100 or 200 years.

Similarly, while reviewing the Metro Area Plan last year, it took two people several days to discover one critical “mistake”. The consultant had underestimated the traffic generated by the proposed development by a factor of eight. The need to find the mistake arose because the analysis did not make any sense. The staff had projected that the proposed development, packed in about 110 acres, would double the population of the Town by 2035, but would cause only relatively minor traffic impacts. Well, the staff was off by a factor of eight. After being publicly embarrassed, it reduced the plan area to 39 acres. Still, there were gaping holes in the analysis and lots of important questions had not been answered.

[13] He did not frame the choice accurately. His statement assumes that the choice was between the proposed development and the existing R-10 zoning. But, there was another choice – the choice between building 27 units as proposed and 22 units (or some other smaller number, say 24). Thus, the question would have been, “Would the same guarantees be available if the number of units were to be reduced to, say, 22?” Our analysis of the guarantees proffered by the developer (minimum 2,800 sq. ft. house, 50% brick, ARB review etc.) and of the value gained by consolidating the three lots and subdividing them into small lots suggests that the developer would have been foolish to walk away from a requirement to build only 22 units. The guarantees would have available even if the property had been developed under R-10 zoning. There was so much to be gained just by consolidating the lots. No councilmember challenged Tom Rust’s framing of the issue.

[14] Based on Fairfax County assessment records, the 27 properties under RGC zoning had a combined land value of $2.16 million in 2001. Under the R-10 zoning, the developed and subdivided land would have been valued at about $1.5 million. And, the value of unassembled and unimproved land would have been less than $500,000 in 2001. Therefore, the developer stood to realize a net gain of between $1 million and $1.6 million just by assembling the lots. He would earn even more profits by constructing and selling the units. He would not have walked away if the number of units had been reduced to 22 or so or even if he had to develop the property under R-10 zoning.