My comments on the 2/11/2019 Town Council work session, 2/13/2019

Go to this page if you want to listen to an audio recording of the meeting.

Before I provide commentary, I should briefly describe what this meeting was about.

The first section of the meeting was a presentation on revising (what used to be called) the Vienna citizen’s guide to traffic calming.  This document lays out the process by which citizens can ask for traffic-calming measures on their streets.  For example, a change in speed limit, speed humps, caution signs, and similar.

The second section of the meeting was an introduction to the new “visual guidelines” for MAC buildings.  This was the part I was there to hear, and most of my comments focus on that.

The final section of the meeting was a discussion of the process by which the Town may accept “proffers” from builders.  This part of the session was motivated by the irregular manner in which the Town accepted a last-minute proffer from the developers of 444 Maple West (Tequila Grande) before passing that proposal.

Commentary follows.


If you were paying attention, this Town Council work session had many jaw-dropping moments.  So many that it’s hard even to know where to begin to write it up.  This is going to be a very long posting, but for some reason, I can’t get the hypertext jumps to work.  This is the list of topics.


0:  Giant Food.

This is an afterthought (hence item zero), but I thought I’d lead with this.  The Town that denied, to my face, that Giant Food was in play for redevelopment is now … kind-of cracking jokes about it?   So it’s now an open secret, I guess?  Click here for the audio from the meeting.  This occurred about 1 hour 20 minutes into the discussion.

It’s just a little snippet, but sometimes those little glitches are how truth slips out.   It’s garbled, but the remark that drew titters from the audience was “Oops, I shouldn’t have said giant, right, but …”.  Then see the bottom of this page for why I’m pretty sure the Giant Food shopping center is slated for redevelopment.

The other strange item is that, out of thin air, without any prior discussion, several people brought up the Vienna farmer’s market, and where it might be relocated.  Somehow that was on some Council members’ minds.  As if several people had been talking about it, for some reason.

Best guess:  The pro-MAC members of Town Council are figuring out how best to “market” the Giant Food redevelopment to the public, and the idea de jour is to set it up to host the Vienna farmer’s market.  That’s a guess, based on my impression, but I’m putting that out there.  So the Giant Food redevelopment will presumably have some open area at least large enough to set up the Vienna farmer’s market.  And then the pro-MAC Town Council will flack that as some great advantage.

Nobody actually said that.  This is just my way of putting down a marker, in public.  When the Giant redevelopment is finally revealed, we’ll see whether or not the Vienna farmer’s market comes up.  And so, by the date of this posting, we’ll have a record of how long Town Council has been kicking that around privately, before letting the citizens in on the joke.

My point is, the apparent open secret about Giant says a lot about the way the Town approaches this.  The property has been sold, so there’s no business case for secrecy.   Enough members of Town Council are in on it that saying “giant” in a public meeting appears to be an in-joke.

So, publicly, Town government chides builders about their poor “public engagement” plans.  The builders, they say, are just not doing enough to get the public involved and informed.  The Town loudly and frequently claims to invite public participation in this process.

And at the same time, the pro-MAC Town Council is doing its best to prevent the public from getting engaged about what will undoubtedly be the single largest development on Maple Avenue.  I guess that keeps the peasants citizens from getting too riled up, or something.  But it’s more than a bit inconsistent.

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1  Green space.

On a positive note, at least some of the pro-MAC Town Council members are finally getting the point that MAC isn’t generating any significant green space.   And that other local jurisdictions set up their zoning laws correctly to provide that type of green space.  So it’s not like this is rocket science if others around here can do it.

You can hear that discussion around 1 hour 18 minutes into my audio recording of the meeting (link given at the top of the page).  The desire for more green and open space was one of the clear findings from my random-sample survey of Vienna citizens.  It will be interesting to see if they actually manage to rewrite MAC to provide that green space.  The law as currently written is completely ineffective in that regard.

This follows a discussion of public spaces in general.  It is worth backup up a few minutes prior to the green space discussion to hear the discussion of public spaces in general.

What they have not yet figured out, though, is that doing that “public space” part of MAC correctly requires an overall plan for Maple Avenue.  This is something I raised in a letter to the Town more than half a year ago.  And it’s something the Town steadfastly refuses to consider.  So, instead, the Town is in the process of doing urban renewal, but denying it.  It is treating each individual projects as a one-off zoning exercise.

We’ll see if the talk about more green space was just talk.  Best guess — see next section — that’s all it is.  I would love to be proven wrong.

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2  The process going forward:  bad faith or bad management, take your pick.

Let me get to the bottom line on this one.  Taken at face value, we now have a huge mismatch between the process for going forward with changes in MAC,  and the scope of the changes to MAC statute that some Town Council members want to see discussed.

The process –– developed by Planning and Zoning with the blessing of the Mayor — appears to me to be designed to railroad some minor changes to MAC through the Town Council.  And that’s what I’ve been saying all along — they are not planning to, and never were planning to, make substantive changes to the law.

And yet, the actual, substantive changes that appeared to be put on the table at this meeting including altering height and density limits (“three story MAC”),  and adding an effective green space requirement.  All of those would fundamentally alter the underlying economics of these MAC projects.

So, assuming I heard that right, and none of that was just hot air, the adopted schedule has the Town spending considerable effort time fine-tuning the minor details of MAC zoning, and then … after that … talking about fundamental changes to MAC statute (number of floors, housing density, green space requirements)?  This is like designing a new car by spending six months focused on the shape of the door handles, and then flipping a coin to determine the size and type of vehicle.

In any case, this is the story as I see it:  Town staff came out with a fast and fairly crowded schedule for making changes in the MAC statute.  Download it here and have a look yourself (.pdf).  The process would end just prior to the end of the MAC moratorium, which is just before any new Town Council members would be seated after the May 7 2019 election.

How fast and furious is this?

In the normal course of events, and as discussed in prior Town Council meetings, the plan was to develop the “visual guidelines”,  and then agree on changes to MAC statute based on that.  And in the normal order of business, the Board of Architectural Review would look it over, pass the modified draft to the Planning Commission, and then the final draft would go to the Town Council.

Instead, all three bodies are reviewing and revising both documents (guidelines and changes in MAC law) simultaneously.  This will lead up to what I believe is absolutely unprecedented in Vienna: They are going to cram all three of these governing bodies into Town Hall, for a joint meeting, so that the Town Council can legally … I guess the term I want is … rubber-stamp the changes that have been fed to them.  And still get all this done, legally, under the schedule as published.

Now, of course, the Director of Planning and Zoning:  A) denied that this was an implausibly fast schedule, B) denied that it had been planned by working back from the MAC moratorium end date, C) said she actually wanted a more ambitious schedule, so this is the relaxed version, and D) did not think there would be any trouble keeping to this schedule.

And you, the citizens?  How much time is allocated to your input?  Other than what the Town is legally required to provide (public comment at Planning Commission and Town Council meetings), you’ll have one 24-hour period to have your public say about all this.  Two hour meeting on a Friday night, and two hours the following Saturday morning (3/29 and 3/30).  The schedule also mentions a survey, but there it was not clear what that meant.

Several, mostly anti-MAC, Town Council members pointed out that in many places, they barely have the time to post materials publicly to comply with Virginia law. And Councilman Springsteen, in particular, complained about the workload, as all this work is layered on top of work required to develop the Town budget.

All to no avail.  It’s full speed ahead.

Now, that would be business-as-usual with this Town Council, except for the following.   In this meeting, I heard the clear go-ahead to reconsider the height and mass of the buildings, the green space requirement, and who knows what else.  Actual, serious, substantive changes to MAC appears to be on the table.

So I just can’t make sense of this.  The process was designed to fast-track minor changes.  Now, they are considering major changes — but there’s no change in the fast-track schedule.

From that perspective, the people running this are either not taking substantive changes seriously, or spectacularly bad managers.  Take your pick.  Either the notion that they will give serious consideration to fundamental changes in MAC is just hot air — in which case putting this together on a fast track is fairly harmless, because all we’re talking about is the style details of the tall, lot-filling, no-open-space MAC buildings we are going to get.  Or they are serious, in which case, this is an issue of poor management.  Because anybody can tell you, you need to get the big-ticket items straight, first, and not spend all your time on the trivia.

Anyway, the idea that they’d proceed apace sorting out the MAC trivia, and then (e.g.) decide later that MAC buildings can be no more than three floors — that’s nuts.

So at this point, I’m betting that there’s no intention to make substantive changes in MAC.  Best guess, the basic outlines of MAC are not in doubt, and the Mayor and Director of Planning and Zoning have no intention of making substantive changes.  And all that talk about building height and mass is just so much hot air.  I’d love to be proven wrong, but that’s the story that makes the most sense to me.  That’s the story under which railroading this through, as planned, is an OK strategy.

At least one Council member — Majdi — strongly objected to having Town Council’s role limited to looking over whatever materials were fed to them.  Basically, objected to granting control of this to Town staff.  We’ll see how that works out.

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3: The totally goofed-up discussions of proffers.

Proffers are offers that builders make to local governments to “sweeten the deal” and attempt to get approval to build.  This can take the form of specific features of the building site (for example, adding a turn lane in the public right-of-way), or in the form of money (e.g., to pay for presumed additional costs placed on local schools.)

The reason this issue came up is the shabby treatment of a couple of Town Council members by the rest of Town Council.  Let me just put that aside for now.  The pro-MAC majority on Town Council is going to continue to do as they have done, and I don’t expect to see any change there.

Far more distressing to me was that much of what was said about proffers, in general, was wrong.   They got a lawyer’s view of proffers, not a view of how they actually work as an economic force.  Let me give you the economist’s view.

Statement:  Proffers are something that builders give to the Town or to the public.  That’s false.  This is a business transaction, not a charitable contribution.  Proffers are something that builders trade for the right to build.  The proffers are offered because they improve the odds that the building will be approved.  Ultimately, proffers are merely standard profit-maximizing behavior on the part of the developer.  They trade the proffer for an increased likelihood of approval, or likelihood of approval of a more-profitable rather than a less-profitable project.

Like any one-on-one situation, the size of the proffer will reflect the relative strength of the bargainers’ economic positions.  If a site in a town is likely to generate substantial profits in redevelopment, and the town government has the spine to do it, it can probably extract substantial sums in the form of proffers.  But in (say) an economically depressed area, with limited profits from development, proffers would be unlikely to be generous.

Next, the entire discussion of proffers failed to recognize the single most important point:  By and large, you don’t need proffers with MAC zoning.  And so, Proffer law does not strongly limit what you can do with MAC zoning.  Why?  As long as we’re talking about something on the piece of property itself, you can write into the MAC statute.

Proffers arise to make deals outside of the zoning law.  They are a way for local governments to extract (some might say extort) value from builders above and beyond what the literal zoning statutes call for.  Effectively they are an ad-hoc tax on builders’ profits, imposed in addition to any requirements of existing zoning law.

But MAC isn’t by-right zoning, builders have to ask for MAC status voluntarily, and the Town has more-or-less total control over MAC zoning law.  If the Town wants every builder to leave half of the lot as open green space, all it has to do is write that into MAC law.  Period.  End of story.  In fact, the Town already wrote an open-space clause into the law, they just wrote it so poorly that it has no material effect.  There’s no need for a “proffer” for green space, or parks, or whatnot.  If the Town wants every builder to have some place for a significant piece of “public art”, ditto.   Their hands are not tied.  All they have to do is write it into MAC law, effectively.

A requirement for significant open green space certainly affects the economics of MAC zoning.  But you don’t need proffers to achieve it.

Now, Council Member Bloch brought up a good point about small properties.  It might be preferable to let smaller properties — that could not provide much of a green space — to pay money into a fund for the purchase of park land, instead of providing it directly.  In that case, sure, the builder can make a proffer in exchange for a zoning variance.  I’m not a lawyer, but I’m pretty sure that’s allowed.  Then, they are excused from providing the green space directly if they provide the value of the green space to the Town.

That failure to emphasize that anything you would like as a proffer, as long as it has to do with the property in question, you can just write into the MAC statute — to me, that was a total fail.  In the context of rewriting MAC, that’s the most important point regarding proffers, and you need to start from there.

Oddly, the one thing that I believe you can’t write into MAC itself — the requirement to underground the utility lines — is now hard-coded into the MAC design guidelines.  So the design guidelines call for the builders to do something that the Town cannot legally require — I think.  The reason is that the utilities are not on the builder’s property, they are on the Town right-of-way.  I wonder if anybody will either notice or care, that the “guidelines” require the builder to do something that must, in fact, be done outside of MAC statute, via a “voluntary” proffer to bury the power lines.

Finally, to grasp the other way in which the proffer discussion was a failure, repeat after me:   Money is fungible.  Meaning, a dollar is a dollar is a dollar.  You can put labels on those dollars by putting them into specific accounts.  But there’s nothing to stop the Town from moving money across accounts, to achieve what it wants.   This is something that gets drilled into economists early and often in their training.

Once you realize that, then you understand that a dollar isn’t a sidewalk dollar, or a park dollar.  Not as long as the Town can shift general funds into our out of accounts dedicated to the creation of sidewalks or parks.

Simple example.  Suppose proffers from builders put $100K into the Town’s (hypothetical) sidewalk fund.  There’s nothing to stop the Town from saying, hey, in this year’s budget, we only have to put in $200K instead of our usual $300K.   There’s nothing to stop the Town from taking that $100K right back out of the fund, by contributing less than it normally does.

And so the (hypothetical) $100K proffer may say “sidewalks” on it, but at the end of the day, all of that is just general revenues.  As long as the proffer money does not literally exceed the amount the Town would have spent in any case, any such dedicated proffer money is, at the end of the day, just another general revenue tax.  To talk about it any other way — as Town Council did — is to delude yourself.

This is so well-known that many Federal programs involving funding dedicated to some specific purpose have maintenance-of-effort clauses.  They won’t give you money unless you agree to keep spending as much as you spent in the past.  This is the Federal government’s attempt to override the general principal that money is fungible.

But there’s no maintenance-of-effort clause attached to proffer money.  And the Town government isn’t stupid.  If they make the developers chip in more to some specific Town fund, nothing stops the Town from offsetting that by chipping in less.  At the end of the day, money is money.

And now, the ugly part of the discussion.  The 444 Maple West building got passed on the back of some last-minute, closed door negotiation, that excluded the anti-MAC Town Council members (Majdi and Springsteen).  Unsurprisingly, Springsteen was pretty upset that whole process.  But other Town Council members just couldn’t see what could possibly be wrong with that.  So I guess I’ll line that out here:

  1.  It’s just plain rude to people who are supposed to be your colleagues.
  2. It provides the “appearance of impropriety” to your citizens.  It certainly did that to me.
  3. If you establish the precedent that last-minute closed-door only-the-elite-may-attend deals are business as usual for the Town,  because you think you’re the good guys here, then what’s to stop the next guy from giving everything away to the builders, in a similar back-room deal?  Once you establish a process that is ripe for abuse, it’s a pretty good bet that it will be abused.
  4. It’s a total and complete violation of any concept of open government.  There’s more than enough Town Council secrecy in this process (See item zero above), we don’t need more of it.

Let me just take a second to expand on 2. above.  As I understand it, the proffer that got 444 Maple West passed is not even hard money.   If the Town doesn’t revamp that stoplight, the builder gets the money back.  Maybe that whole thing was a sham — how could we know, it was such a slam bam operation that nobody — other than the elites invited to that back-door meeting — had an opportunity to read the proffer.  Maybe that was just more salesmanship, on the part of a Town that has worked hard to sell MAC, at more or less any cost.  Maybe if other heads had been in the room, the money wouldn’t be conditional?

We’ll never know.  I’m sure they got a thrill by helping the developer over the finish line that way.  Not at all sure they were working effectively on behalf of the citizenry.

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4 There is no 100-day rule.

There is no 100-day rule.  Would somebody please let the Town Council know this? Or show me where I’m wrong?

I was confused, months back, by talk that the Town faced a 100-day deadline and had to take action on a developer’s proposal within 100 days of … something.  But I could not find that in the law.

Ultimately, I did track that down.  Here’s what Virginia statute says.  The Planning Commission has 100 days to pass its judgement, or the development is deemed approved by the Planning Commission.  But Town Council?  Town Council has up to a year to come to an agreement about any development within its purview.  And if Town and developer agree, it can take more time than that.

I even read through the Town of Vienna statutes, wondering if the Town had somehow passed a law that bound it to a 100-day limit.  But no, I didn’t find anything.  Literally searched Town statute for “100” and “hundred” and found nothing.  Searched Fairfax County statute for good measure, and again, nothing.

Now here’s the awful thing:  Councilwoman Bloch was making her decisions about what was and was not feasible, based on what I believe is a mythical, non-existent 100-day rule.

Now, if I’m wrong — if you, the reader, happen to know where the 100-day limit is in Commonwealth or Town law — please drop me an email (chogan@directresearch.com) and point me to the correct section of the law.  I would love to be corrected on this.   I will publicly issue a correction if I am wrong.

But as of now, I think all talk about a 100-day limit — for the Town Council’s action — is just nonsense.

Here’s the lengthy text of what I dug up on this last year:

As I read it, unless there is a Town of Vienna statute to the contrary (or possibly one from Fairfax County), the Town Council has a year to decide.  That’s what it says in Commonwealth of Virginia statute.  That’s what almost all other counties in the Commonwealth say.

Unless there is something specifically in Town of Vienna statute — and I sure have not found it — the 100 day deadline, for the Town Council, if there is one, is purely by convention.  In law, there’s no such thing.

First, Commonwealth statute says that the Planning Commission has 100 days, starting from the date of its first hearing, in order to make its recommendation to the governing body (Town Council).
https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2285/

Emphasis mine:
“Failure of the commission to report 100 days after the first meeting of the commission after the proposed amendment or reenactment has been referred to the commission, … shall be deemed approval …”

For 444 Maple West, the August 31 date that was mentioned in some coverage was in fact 100 days from the original 5/23/2018 Planning Commission meeting.  So if the Planning Commission failed to act by August 31, that would have been deemed approval by the Planning Commission.

But that section of the law has does not say how long the Town Council has after the Planning Commission makes its recommendation.

Second, several jurisdictions spell out how long the relevant governing body has in addition to the 100 day limit for the Planning Commission.  Almost all say 1 year, and that’s also what Commonwealth statute says.

Here’s  Northampton County:
Commission shall hold its public hearing and take action on the application within 100 days of its first meeting following notification of application acceptance by the Zoning Administrator. The Board of Supervisors shall act on the application within a reasonable time not to exceed 12 months of acceptance. The applicant may consent to the extension of these time frames.

Here’s York County:
“Upon receipt of the recommendation of the commission, the board, after public notice in accordance with section 15.2-2204, Code of Virginia shall hold at least one public hearing on such petition for amendment, and as a result thereof shall make such changes to the chapter as it deems appropriate, provided further that the board shall act upon and make a decision upon each petition within one (1) year of the date such petition was filed.

Here’s Stafford County, summarizing what other counties do:
“The County Code however, varies from the State Code in that it does not acknowledge that a zoning ordinance amendment can be initiated by a property
owner and that such request must be acted on within 12 months unless the applicant requests a time extension. As it is a State Code provision, the County recognizes and adheres to the provision (without direct inclusion in the County Code). “The Board of Supervisors would hold a public hearing(s) and vote on the amendment within one year of the latest amendment made by the applicant to change the ordinance”

Here’s Albemarle County, VA with citation as to the Commonwealth statute:
“requiring a recommendation from the planning commission within 100 days (Virginia Code § 15.2-2285(B)) and requiring the governing body to act within 12 months. Virginia Code § 15.2-2286(7).”

Here’s what that section of Virgina statute says:
https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2286/

“In any county having adopted such zoning ordinance, all motions, resolutions or petitions for amendment to the zoning ordinance, and/or map shall be acted upon and a decision made within such reasonable time as may be necessary which shall not exceed 12 months unless the applicant requests or consents to action beyond such period or unless the applicant withdraws his motion, resolution or petition for amendment to the zoning ordinance or map, or both. In the event of and upon such withdrawal, processing of the motion, resolution or petition shall cease without further action as otherwise would be required by this subdivision.”

The sole exception I have found is Isle of Wight county, again, emphasis min:  http://www.co.isle-of-wight.va.us/planning-and-zoning/current-planning/rezoning-proces/

“The Planning Commission has up to 100 days to act on the application, after which it will be forwarded to the Board of Supervisors with the Planning Commissions recommendation of approval or denial. The Board will then review and discuss the application and it will again be open for public comment. The Board also has 100 days to act on the application. ”

To me, that reads as “the board has 100 days after receiving the Planning Commissions approval or denial”.  But it might mean 100 days, total, for both PC and Board of Supervisors.  It’s ambiguous.  I looked but could not find this spelled out in Isle of Wight statute, so it looks like they also do this purely by convention, not as a matter of explicit law.

Bottom line:  I believe there is no 100-day rule applicable to Town Council decisions in this area.  If there is, that may be unique within the Commonwealth, and that law is posted somewhere that I could not find it.

Commonwealth statute says they have a year to decide.  I believe that’s the law that governs this.

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5  The critical traffic study … that the Town is not doing.

In the course of this, Councilman Noble said that they really need the results of the overall Maple Avenue traffic study before proceeding with the revisions to MAC.  I believe he was backed up by at least one other Council member.

But then he went on to talk about the findings they need to see, and they have absolutely nothing to do with the study that the Town has actually contracted for.

Quite rationally, he said that the Town needs to assess how bad the traffic would be from all these new MAC buildings.  Would it degrade the “level of service” (i.e., pace of traffic) on Maple?  Something that looked at the long run and maybe, per Councilman Majdi, allow the Town to judge whether enough development is enough.  Something I have been calling for, for months, and something I already did the rough arithmetic for, which you can see on this page.

I have since had to eat my words that the Town would never do a traffic study.  The Town is doing a traffic study.  But it is very carefully and very explicitly NOT doing the study that would provide the information Councilman Noble calls for.  It is NOT providing information similar to what I show in the reference just above.  For one thing, they are only projecting five (?) years ahead, so there will (affirmatively) be no estimate of the long-run impact of MAC zoning.  In addition, the primary purpose appears to be to help develop a standard transportation proffer.  It is a “multimodal” study, so much of it will be devoted to finding ways to encourage pubic transport, walking and bicycling (i.e., most of it will be likely be a waste of time, from the standpoint of making projections of traffic.)    This “standard proffer” can then be used to speed the pace of MAC development.  You can read my writeup of what the traffic study actually appears to be, on this page.

The Director of Planning and Zoning was straight about it, and flatly stated that the results of that study would have no impact on the development of MAC zoning rules.   (At which point, I believe Councilman Noble said “You’re giving me heartburn”, or words to that effect.)   A lot of people on my side of the fence were upset by that statement that the traffic study would not affect MAC law, but as I understand it, it’s true.  That study was designed to do what Planning and Zoning wanted – speed up MAC development — not what Town Council might have wanted — assess how close Maple is to it’s carrying capacity.

So I completely agree with what Councilman Noble called for.  But it has more-or-less nothing to do with the traffic study the Town is actually doing.  I said so at the time, I’m sticking by that.

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6  Oh, you thought the traffic-calming rules were rules-rules?  Nah.

In a different part of the session, the Town discussed plans for changing how citizens could ask for “traffic calming” measures.  Hint:  They are going to make it more complex, and give Town staff more control over vetoing projects.

Many people — including myself — were quite confused about exactly what they were doing.  This was not helped by the assertion that then the Town’s guide says that (e.g.) 500 cars per day was the limit for considering such-and-such … that they didn’t really mean that as a hard-and-fast rule.

This was news to me, that all those rules, in the traffic calming guide, suddenly those aren’t actually rules, those are just wibbly-wobbly guideline-ish things.  Merely one of many considerations.

Meanwhile, every traffic study of 444 used those rules … as rules — which is plainly how they read. So … what … the builder can dismiss our concerns because we don’t meet the plainly-stated rules regarding amount of traffic, and THEN the Town can turn around and say, rules? What rules? Did you think those were rules? Oh, how silly of you.

So it’s not enough to ignore us when we ask for help.  Now they have to rub salt in the wounds like this?  If those aren’t rules, the Town needs to make that clear.  And every subsequent MAC traffic study needs to be based on the fact that those limits, in the traffic-calming guide, are not really rules.

There were other confusing aspects as well, but I was not clear whether those were just due to unclear wording, or to true attempts to change the rules under which citizens could ask for traffic-calming measures on their streets.

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