Oh, you meant residential mezzanine? Five floors are just fine then, 2/28/2019.


I have a lot to say about last night’s Planning Commission work session, but I’m going to start my day by pointing out yet another bit of sleight-of-hand from our Department of Planning and Zoning.

The story so far MAC zoning was sold, in part, on the notion that the buildings would be limited to four floors.  Although some Planning Commission members now profess that this is irrelevant, I’ll remind people that the functional point of limiting the number of floors is to keep density down.  This wasn’t some frill tacked onto the law purely for the look of it.  It is the Town’s crude, home-grown method analogous to the Floor Area Ratio (FAR) regulations used by more sophisticated entities (such as Falls Church).  It means you can cram only-so-much sellable or rentable floor space onto these MAC-zoned lots.

And yet both of the more recent MAC submissions came in with five floors.  You can see my writeup, calling that out clearly, here.

Both of the new submissions label or discuss the fifth floor as a “mezzanine” floor.  That is, a floor that does not span the full width or depth of the building.  (Think of a balcony in a theater — that’s a mezzanine floor).  MAC has a specific exception for mezzanines that is consistent with, but slightly more generous than, a long-standing mezzanine definition in the Uniform Building Code.  Basically, a balcony (open to the floor below) doesn’t count as an additional floor if it covers less than half of area of the floor underneath it (per MAC).

At last week’s Town Council meeting, this exact question arose:  How can Sunrise submit a building plan that clearly has five floors, under the MAC definition?  And Director Petkac had no answer.  Councilman Noble asked the question, quite directly, and the result was a) no answer, and then b) the Mayor stepped in to defer the issue to the next Town Council work session.

At yesterday’s Planning Commission meeting, Commissioner Kenney asked the same question.

You realize this is fairly important, right?  This goes right to the heart of limiting the impact of these new buildings, versus the profitability of them.  Right to the heart of how the Town packaged and sold MAC.  Right to the heart of the question, whom does our Town government work for, us or the developers?  And before now, this seemed to be an absolutely clearly settled issue.  The MAC zoning rules said four floors, that’s it.

So, yesterday, the same question came up.  How can Sunrise — clearly a sophisticated organization, hiring top-drawer talent — come in with a building that does not meet the definition of a four-floor building under MAC code? It has a floor labeled as a mezzanine that does not meet even the uniquely generous definition of a mezzanine in the MAC code.

This time, however, Director Petkac had an answer:  The mezzanine definition in MAC only applies to residential mezzanines. And so, she says, the Sunrise five-floor proposal is perfectly legal under MAC.  Actually, the answer was worse than that.  The actual answer was “Staff concurs with Sunrise that this only applies to residential mezzanines.”  (That’s from my typed notes, I’ll get the exact audio as soon as I have finished processing the recording.)  So the answer isn’t even original with Petkac, she’s just faithfully echoing the developer’s line on this particular issue.

This is about 2:28:00 into my audio recording of the meeting.

(It’s actually even worse than that, still, because, as I understand, this “residential” distinction only arises because Sunrise typically asserts that its buildings are commercial establishments, not residences.  So the only reason this supposed distinction arises now, and has not come up before, is that we are, in effect, allowing Sunrise corporate policy to reshape our law.)

Let me point out a few things.

First, she simply made that up. MAC code says mezzanine, and every discussion you have heard from Town Council on down used examples of mezzanine floors in commercial space.  The phrase “residential mezzanine” literally does not appear in the MAC code.  Nor has it ever, to my knowledge, come up in any public Town discussion of MAC since I have been following this issue.

Second, if she had an answer, why didn’t she provide that answer at last week’s Town Council work session? Per my discussion above, this is a fairly crucial point.  Did she just think that up recently, or was she unwilling to say that on video, or what, exactly?  If there actually was a simple answer to Councilman Noble’s straightforward question … why not give it?  Why did the Mayor have to bail her out by deferring the answer to some later date?

Third, if that’s true –– if a builder can label a fifth or higher floor a mezzanine, and put it in the commercial space, and so have five floors with no hassle — then why is the builder of 380 Maple West asking for a zoning variance (“site plan modification”?) for his “mezzanine” floor? Why not make a small opening to the floor below, meet the (nonexistent, non-requirment) rule (whatever it is) for a non-residential mezzanine, and skate through as Sunrise intends to?  I mean, once the Director of Planning and Zoning has publicly said, in effect, our limits on mezzanine floors only apply to residential mezzanines … then any floor (or floors) that does (or do) not occupy the full depth of the building can be added, and not counted as a floor or floors.

Fourth, if the MAC mezzanine definition only applies to residential mezzanines, as Director Petkac now asserts, then doesn’t that mean that the MAC portion of the code literally has no regulation at all of “non-residential” mezzanine floors? By making this assertion, in public, she has opened the door up to … more or less anything builders now want to do, in this area?  Beats me.

Fifth, weirdly enough, there will in fact be people living on that “non-residential” mezzanine floor in the proposed Sunrise building.  I believe there are 11 residences on that floor.  So … people will live on that floor, but the mezzanine limit does not apply,  because the mezzanine limit only applies to residential mezzanines.  And this one is not a residential mezzanine, even though people will live there.  Because Sunrise asserts that its buildings are commercial establishments.  Got it.

Sixth, it’s particularly risible that the architect of the building counted the mezzanine as a floor when discussing the building.  He designed the thing, so presumably, if anybody knows how many floors it has, he does.  When asked about the interior green courtyards, he clearly described them as the third-floor and fourth-floor courtyards.

That description is only correct if the mezzanine floor is the second floor.   So when the architect, in public, casually describes his own building in a way that inevitable and unavoidably leads to the conclusion that this is a five-floor building … well, then, it’s pretty clear this is a five-floor building.  And when Director Petkac asserts that it’s a four-floor building under MAC, because of this imaginary, never-discussed, totally undocumented distinction between residential mezzanine and other mezzanine.  Well, that’s just a fiction.  It may be a legal fiction.  But it’s a fiction.

Seventh, by saying that in a public meeting — that she agrees with Sunrise’s assertion regarding MAC and the four-floor limit — I believe she has opened up the Town to lawsuit if there is a change of heart on this.  If, through some miracle, sanity and reason prevail, and the Town keeps its commitment to four floors only, then Sunrise can and probably should sue the Town.  Because the Director of Planning and Zoning, with forethought, said otherwise in a public meeting.

Eighth, conversely, if some concerned citizen decides to sue the Town over this — to sue the Town over breaking its promise about four floors, and so allowing illegally dense commercial construction in that citizen’s neighborhood — then ditto.  The change in the Director’s public explanation of the fifth floor — from no explanation last week, to this explanation now — becomes fodder for a lawsuit.

Ninth and worst, hey, guess who gets to decide whether this is OK under MAC?  Well, it’s a zoning issue.  It gets to be decided by the Department of Planning and Zoning.  So we already know what the decision is, because the Director announced it in that public meeting.  Checks and balances, anyone?  If this is going to be overridden, it will have to be done, in public, by our duly elected Town Council members.  I am sure they are looking forward to that discussion.

No, I take that back.  Tenth, and worst, for sheer dumb, one Commissioner (whom I shall not name)  actually appealed to the changes to MAC that are in the process of being railroaded through Town Council, as a reason to allow five floors in the Sunrise building. She pointed out that one pending change will allow buildings as long as they give the appearance of four floors from every direction.  And so, per this Commissioner, maybe we should let Sunrise skate on this issue because this is where MAC is going.  Put aside the assumption that the changes will pass.  The sheer dumb part is that she apparently had not bothered to look at the plans for the building, or images that she had been shown on the screen in the room — the ones where you can clearly see all five floors, from the outside.  So in trying to defend the builder, she was appealing to a change in the law that would, in fact, make the Sunrise building clearly illegal, for reason of appearance of five floors, under MAC.

Ah, here, check me out, make sure I can count to five correctly.  Apparently this is a fairly uncommon skill.  (And here I have deleted several funny but fundamentally mean comments, so if you ever think I’m a little too rude, rest assured, I could have been ruder.)  Here’s the back and side of the planned Sunrise facility.  Maybe some lawyer can convince you otherwise, but … that sure has the appearance of five floors to me.

In all fairness, she probably just got confused as to which developer she was making excuses for.  The “appearance of four floors” gimmick only works for the five-floor 380 Maple West, not for the five-floor Sunrise building.  That one proudly shows all five floors on the back and side view.

If you wonder why I keep saying that I can’t trust my Town government, this five-floors-is-really-four-floors issue is yet another example.  To me, this is just part of an ongoing pattern of duplicity.  You thought MAC limited buildings to four stories, just because the law plainly says that?  Guess again.

I will end this by saying that, under something analogous to the “captain of the ship doctrine”, we have to assume that the Mayor is perfectly fine with this.  Four floors is actually (at least) five floors?  Got a problem with that, then take it up with the Mayor.