Herndon Opinion by Jasbinder Singh and friends

A. INTRODUCTION

This is one the several blogposts on the role of the staff in the Town of Herndon. The staff plays a very powerful role in the government mainly because it is the storehouse of all the technical knowledge and arbiter of the history. Community leaders, councilmembers, citizens, businessmen, developers and consultants all depend on it for guidance as well as approval of their projects and plans. Consequently, no one can challenge the staff – at least easily. Its power also comes from the fact that it can outlast almost everyone. It has more time than anyone to gather facts, develop alternative policies or just tweak things.

This is not to suggest that the staff has unbridled power. It doesn’t. It reports to the Town Manager who executes policies and procedures mandated by the town council; therefore, the staff responds to the needs, whims and interests of a select few that include the mayor and councilmembers (and community leaders who carry political influence in the town). The staff looks to them to provide the much-needed leadership.

The current administrative system, however, permits only a limited role by the mayor and councilmembers, because they:

• receive meager salaries and cannot afford to spend much time on town matters

• are hardly ever involved at the start or during the review of a project, and

• have a very short period of time to review the material before or during the public hearings.

This case demonstrates that even well-qualified councilmembers are not able to understand the gist of technical, cost, economic, legal and administrative issues involved in most projects; therefore, they cannot provide adequate leadership to the staff, even if they want to. Some councilmembers (and, mayors) are better at it than others, but almost all of them are highly constrained.

The staff is aware of this shortcoming and makes appropriate adjustments with the advent of each new council. More often than not, under the supervision of the Town Manager, it decides on a course of action that can help it to obtain the approval of a project. Once the staff sets its course, there is usually no going back. It adjusts its methods and strategies as the process moves forward.

Tough questions or serious objections from councilmembers at the end of the administrative process generally do not derail the staff’s plans. In most cases, the challenge (for the staff) boils down to changing the minds of one or two councilmembers, because one, two or three councilmembers are almost always ready to approve the staff’s recommendations, whatever they may be. Strong objections from a minority do not matter much, if at all.

THE IMPORTANT QUESTION IS, “IS THE PUBLIC INTEREST SERVED?”

President’s Court exemplifies how the staff can set its own course and make its own decisions without material direction from the mayor or the council. It sheds bright light on how the staff can change assumptions, limit the analysis, slant a methodology, create new definitions, tweak the administrative processes, direct members of the town’s boards and commissions, emphasize some issues more than others, and leave some issues out of the analysis in order to obtain necessary approvals.

However, as this case reveals, this system (or method) of operation does not serve the best interests of the general public.  This article strongly proposes that all staff reports, memorandums, policy papers and analyses should be put under intense scrutiny at all times and that the administrative processes should to be changed to protect the general public interest. The question is, “How?” This article lays the groundwork for finding the answers.

B. BACKGROUND OF THE ZONING REQUEST

1. Brief Description of The Development

The President’s Court, an upscale development, is located at the corner of Van Buren Street and Herndon Pkwy. As one drives along Van Buren Street across from the Haley Smith Park, one cannot miss its distinctive view. Close spacing between homes catches one’s attention from afar. The development presents its “back” to the town and it has a few other shortcomings that are discussed in the following sections.

2. The Re-Zoning Request

In 1996, the property consisted of three adjoining parcels in an R-10 zoning district. It would have been very inefficient to develop them independently. The development proposal consisted of two main parts:

• Consolidate the parcels into one 6.26 acre lot, and

• Rezone the combined lot from R-10 to RGC (residential – garden court) zoning

Just the consolidation of the parcel itself would have increased the value of the land significantly, but the combination of the consolidation and rezoning would cause another big jump in value. The latter would allow the developer to build many more homes than under the R-10 zoning.[1]

The developer initially submitted a proposal to build 35 single-family homes under the RGC zoning in the late 1980s. The application was denied, because “…there was considerable concern that if the subject property were to be rezoned for Garden Court, then the 10 acres across the street could very well be rezoned to a Garden Court or townhouse development, which would not have been appropriate.” The density of development in the 16.2-acre area, in Town staff’s view, would have been incompatible with the surrounding R-10 neighborhoods.

By 1996, however, the circumstances had changed. The 10-acre lot across the street was being developed into a Town park. Due to the reduction in the size of the developable area, the concerns about excessive density were not as prominent as in the late 80s. They were there nonetheless. The developer, after an exploratory inquiry, resubmitted its proposal in 1996. The staff must have encouraged him to do so, because there would have been no point in submitting an already rejected application.

3. Regulatory Mandates

The intent of the RGC district was “…to allow single-family residential development at urban densities, and, at the same time, permitting the highest degree of flexibility in design…” (emphasis added). The RGC zoning allowed a developer to (1) locate dwelling units as close as 4’ from each other, (2) begin construction of the units at the lot line, and (3) cover the entire lot with the foot print of a home. Seemingly, a builder could build a large number of homes very close to each other, except that he had to comply with several constraining requirements, including the following:

• do not exceed 6 homes per gross acre of land.

• provide at least 700 sq. ft. per dwelling unit for developed, active recreation areas.[2]

• protect existing trees, and set-aside land for management of storm-water and construction of streets (within the development), and

• dedicate land for public street improvements.

The record suggests that about 2.4 acres were set aside to meet the regulatory mandates and demands of the town. Of the 6.26 acres, only 3.8 acres were used to construct homes. Initially, the developer proposed to build 35 residential units. It implies the size of an average lot, including the rear-yard set back, would have been about 3,330 sq. ft. It would increase to 4,030 sq. ft., if the Town were to waive the requirement to provide a dedicated, active recreation area.

Even the larger lot would have run afoul of another mandate of the zoning regulation – Neighborhood Preservation, which imposes two conditions that require compatibility with adjacent neighborhoods:

• Lot Sizes: Consolidation of parcels and redevelopment is not encouraged; neither is the re-subdivision of lots sizes smaller than the neighborhood average.

• Character of Neighborhoods: Development in such areas should be compatible with the existing, adjacent residential neighborhoods to maintain the same or similar character.

The regulations do not set any numerical standards (or provide any guidance) for assessing the meaning of the terms “lot sizes smaller than the neighborhood average”, and “the same or similar character”. If the average lot size in the adjacent neighborhoods is 10,000 sq. ft., can the property be subdivided into lots of 5,000 sq. ft. to conform to the Neighborhood Preservation mandate? Similarly, what architectural standards or what measures of density, should be used to measure “same or similar character”? The staff was faced with developing a set of robust rules for making decisions.

C. DID THE PLANNING STAFF MAKE CORRECT DECISIONS?

Neither the TC, whose members were quite intelligent and reasonably qualified nor the ARB that was represented by one of the most experienced architects in the area, had little influence on the final outcome. The town planning staff that shepherded the project from May 1996 until its approval in March 1997 pulled all the strings and “won” everything that it wanted.  Even though its own expertise is limited to planning, it and it alone seems to have decided what was good for the Town.

Early on, without gathering the necessary information, it decided that the developer could not afford to provide active recreation at the site. Using incorrect measures for comparing densities of neighborhoods, it decided that the developer could afford only 27 units. It conveyed these assumptions to the Planning Commission and others in the town and made them stick. Along the way, it decided that the ARB needed to conduct a review of the developer’s proposal. When the ARB’s concerns conflicted with its own decisions, it conveniently ignored them.

Later, it drew up the architectural guidelines for the ARB to use in the site plan stage. It seemed to be telling the respected architects on the ARB what the issues were and what they should decide. It also showed scant respect for the views of the nationally known hydrologist and physicist on the council. During the Town Council consideration of the application, it asserted that storm-water issues should be discussed only at the site planning stage, even though, in this case, they had the potential to limit the number of units that could be built and strongly influence the layout of the development.

The strange part in all of this is that it did not focus on many planning issues – its area of expertise. It did not (1) articulate the effects of accepting a private street, (2) discuss how the phrase “substantial conformity to the GDP” could be used by the developer to his advantage, (3) pay attention to the need for visitor parking, (4) consider how various parts of the code (such as those requiring building of decks) would affect the RGC districts, (5) pay attention to the privacy concerns of future residents, (6) articulate the differences between R-10 districts and the more urban RGC districts, (7) even mention, much less calculate, the monetary benefits the developer could realize by consolidating the three parcels, and (8) consider meeting the spirit of the RGC regulation. Once it had made some of its initial decisions in May-June of 1991, it did only those things that were necessary to shepherd the application through the bureaucracy. The following sections discuss the details.

1. Waiving the Requirement to Provide Dedicated, Active Recreation Area

The case record suggests that almost from day one, the staff, without gathering relevant and appropriate information, without determining the number of units that could be provided, and without developing some sense of the increase in value of the land through consolidation and subdivision, seems to have rushed to judgement and decided to support the application. It gave strong indications of support in memos prepared soon after the developer inquired about the appropriate development of the property.

• In its May 1, 1996 memo, it opined that, “There is a requirement for 700 sq. ft. of “developed, active recreation area” per dwelling unit, and this could constrain density…”

• Its July 10, 1996 memo stated, “…it is possible to argue that it would be difficult for this site to provide a meaningful recreation area. One compromise to consider would be to view (somewhat generously) the open space with the (exercise) trail (it probably amounts to half acre) and this could be argued to meet the letter (not the spirit) of the Zoning Ordinance…” (Italicized words added to reflect staff’s thinking)

There is nothing in the written record to support this judgement. In its rush to judgement, the staff had not thought through two issues related to the trail. First, a large part of the trail proposed by the developer was located in the open space behind 12 homes. The owners of such homes would lose their privacy and their sense of safety. The 12 affected owners certainly would not have supported for the trail.[3]Second, there was no need for an exercise trail, because the Haley Smith Park across the street would have provided sufficient area for walking, running and exercising. What was needed was a common area containing a tennis court, a basketball court, a community garden, or a club house that would make it possible for the residents to enjoy their development and each other’s company. It should be noted that even though the developer reduced the number of units from 35 to 27, the need for active recreation, as contemplated by the RGC zoning, was never mentioned again. The spirit of the RGC zoning seemingly disappeared.  The chief implication of this calculation is that rather than rushing to judgement the staff should have carefully conducted its analysis first.

2. Using Incorrect Measure of Density

To measure the “compatibility” of the proposed development with the adjacent neighborhoods, the staff decided to use the concept of theoretical maximum density under R-10 zoning. Its May 1, 1996 memo states, “A strict interpretation of the Comprehensive Plan would conclude that the RGC zoning could be appropriate with a maximum density of 4 dwellings per acre. This would enable the developer to achieve more lots than would be possible under R-10 zoning.” In other words, the staff, right from the start, began to use 4 units/acre as the “standard” for negotiations with the developer. However, there were two issues with its use.

First, this concept, theoretical maximum density, cannot be found in the town code. Instead, the following two terms are given:

• Density, gross: The number of dwelling units on a particular tract or parcel of land divided by the entire area of that tract or parcel.

• Density, net: The number of dwelling units on a particular tract or parcel of land divided by the area of that tract or parcel remaining after subtracting land that is dedicated.[4]

By November 1996, the developer was proposing to build 31 units on 6.26 acres or at a gross density of 4.95 units/acre. The staff was comparing the theoretical maximum density of 4 with the gross density of 4.95 in deciding whether the number of units should be reduced further.  Since the theoretical maximum density was equal or almost equal to net density, the staff was really comparing the net density of R-10 neighborhoods with the gross density of the proposed development.

Comparing net density with gross density is like comparing apples and oranges. The staff should have compared the gross density of the adjacent neighborhoods with the gross density of the proposed development.  In fact, it should have calculated the actual gross density of the Chandon Woods (and/or the Downs) and compared it with the gross density of the proposed development. Only then its comparison would have been valid.

Our calculations show that 61 homes in Chandon Woods, along with the associated roads, occupy 17.7 acres of land. This means the gross density of Chandon Woods is (and was) 3.45 units/acre. Therefore, the staff should have used 3.45 unit/acre, rather than 4 units/acre, as its baseline for its negotiations with the developer. This difference in the baseline would have made a world of difference in the eventual outcome. The developer would have been permitted to build only 22 dwelling units, or, 5 units less than the 27 units approved by the Town Council.[5], [6]

Assuming that a unit occupies 5,000 sq. ft., the approval of 5 less units would have freed about 25,000 sq. ft of land for a variety of uses including: (1) a wider street, (2) more parking spaces and (3) a dedicated, active recreation area. Some of the extra square footage could even have been used to increase the distances between the homes and mitigate the “wall” effect that exists today.

3. Ignoring The Lot-Size Criteria

The staff totally ignored the lot size requirements under the Neighborhood Preservation mandate. The average lot size in the two adjoining R-10 districts was about 10,000 sq. ft. The average lot size in the proposed development, by comparison, was less than 5,000 sq. ft. If one uses “lot size” as the criterion for comparison, the density of the proposed development was at least twice that under the R-10 zoning. For this reason alone, the new development was not going to have the same character as the adjoining R-10 districts. Notwithstanding this fact, the staff report asserted that the proposed development was compatible with that of the adjoining neighborhoods.

4. Ignoring the Need For Visitor Parking

During its presentation to the Town Council, the staff stated, “… the applicant is providing ample on-site parking. The zoning requirement is for two parking spaces on each lot. The applicant has satisfied this requirement and is providing almost double the amount of required parking under the parking ordinance.”[7]  The staff was referring to the requirement to provide 2 spaces/dwelling units and to the fact that the developer had provided 105 spaces (or about 3.89 spaces/unit). Consequently, it was not referring to the availability of visitor parking.

The staff should have known that this development, with homes clustered together along a narrow private street, would generate visitor-parking needs akin to that of a townhouse development.  It could have gotten some idea of the magnitude of the demand for visitor parking by considering the following provisions of the code:

• “for every land use, there shall be provided sufficient area for … parking of all motor vehicles that may be expected to come to the establishment … whether driven by patrons, customers, purveyors, guests, employees or otherwise…”

• “in townhouse type developments 0.75 cars/dwelling unit for visitors and 0.25 cars/dwelling units for recreation vehicles must be provided.”

Accordingly, it should have asked the developer to provide at least 20 (=0.75*27) visitor spaces, nine more than the 11 that have been provided. If it had done so, the residents’ continual fight for spaces for their guests perhaps would not be so intense.

The staff should also have been aware of the implications of three other aspects of the proposals that affected visitor parking. First, the developer by proposing a “private” street at the re-zoning stage, would have the ability to reduce the width of the street during the site plan stage and (thereby) to increase the size of homes in the development. Second even though the developer had proffered that every unit would have a minimum of 2,800 sq. ft. of finished space, there was no reason to believe that the units would not end up having more finished space. Larger homes would generate more visitor parking. Third, the staff should have known that the developer’s proffer to construct the final development “in substantial conformity to the GDP” was troublesome. He could make substantive changes without being too worried of the rejection by the staff.

Indeed, at the site plan stage (in 1999), the developer proposed a major change that affected the availability of street parking. It proposed to permanently remove the already approved 13 on-street parking spaces, reduce the street width to 24 feet, convert all 1-car garages into 2-car units, increase the length and width of driveways to accommodate two cars and increase the size of the dwelling units to at least 3,300 sq ft of floor space.[8] This change was very significant, but on June 22, 1999, the Town gave conditional approval to the proposal by stating that, “…if at least 75% (11 spaces) of the on-street parking are retained, the proposed plan can be found to be in substantial conformity with the GDP”. To meet this requirement, the developer created at least 8 new street spaces, but located them at the two ends of the street. He couldn’t possibly have located them along the length of the street, because he had narrowed the street to a bare minimum in order to increase the size of the homes and meet other goals.[9]  For this reason, this development only has 11 on-street spaces for visitors. Note that even in the site plan stage, visitor parking was not given explicit consideration by the staff.

5. Review Of The Architectural Character

For some reason, even though the developer had indicated that he was building for the “executive class”, the planning staff was concerned about the quality of the dwelling units from the very start. The following comments made in July 1996 reflect some of their concerns:

• “where is the suggestion of quality? … It looks cheap. The units are practically the same…”

• “re: fence along VB Street: see my alternative sketch. I prefer a wall of high quality landscaping instead of a fence…” (emphasis added)

• Batman needs to come up with a way to assure the Town that he is building for a specific market at a minimum sales price, or something. Otherwise, this development would become a disaster.”

Nothing in the code permits and nothing in their background qualifies the planning staff to substitute their judgement for the judgement of a builder (who was willing take business and financial risks to build 27 homes costing $8 to $10 million).[10] Regardless, the staff pushed forward with public airing of such concerns. Its Dec. 16, 1996 staff report to the Planning Commission depicts a laundry list of items that the developer should be asked to address. The staff even threatened to withhold the approval of the zoning application by asserting that “support for the rezoning application may depend on (a) the provision of details about the exterior of buildings and yards, (b) the quality of the details proposed, and (c) review by the ARB or review equivalent to the ARB…” Further, it asks the details of “…bays and alcoves…”, siding material, wood accents, landscaping between buildings, treatment of individual yards, site lighting, and decorative fencing. And, it makes many other demands about sidewalk and exercise stations. Needless to say, the staff seems to be designing the development for the builder.

By December 26, 1996, it had forced the developer to proffer that this Residential Garden Court district, is an Architectural Control District for the purposes of this development and later asked the TC to condition its approval upon the acceptance of a list of Architectural Guidelines.[11] This meant that the Architectural Review Board of the Town would have the authority to review the architectural design after the approval of the zoning. Still, the proffer was not sufficient for the staff. It asked for an informal ARB review of the application before the council’s review in February.

The ARB review, though, turned out to be not to the liking of the staff. The review report included the following comments: (1) the proposed development is significantly more dense than R-10 zoning, (2) the development appears to “turn its back” on the neighborhood, (3) while the developer is proposing a “decorative” fence, it will still be the rear of the houses facing Van Buren Street, (4) attach the homes garage-to-garage to limit land area between each home, create more green area and create interesting backyards with private courts, and (5) create more recreational space. The staff made no mention of it in its presentations to the TC.

This review of the ARB came too late to change anything. The staff had already made its decisions several months earlier and the ARB’s comments conflicted with those decisions.  However, the chairman of the ARB appeared in person to present its report to the council. The record shows that the councilmembers did not give much, if any, consideration to the major issues raised by the ARB, issues that still plague this development.

6. What Was Missing In The Process?

We must go back to the start of the review of the process to find out what went wrong. The review of the application started in May 1, 1996. Somebody on the staff, perhaps the Director of Community Development, or a staff member, or even the Mayor decided that this application was noteworthy and could benefit the Town. But then, a single staff member of the Community Development was left to set the tone of the application. There was no guidance from the council or the mayor. There is no record to suggest that they even knew about the project until it hit their desks in February 1997. They did the best they could in short period of time available during their work sessions and public hearings. It is reasonable to conclude that the outcomes would have been far better if, among other things, the council had provided continuing oversight after the start of the application evaluation process.

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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.