Some trivia from the Town Council/Planning Commission meeting, 3/5/2019

On 3/4/2019, the Town Council and Planning Commission had a joint meeting to discuss 380 Maple West (40 condos at Maple and Wade Hampton), and the proposed Sunrise assisted living (85 rooms, more than 100 beds?, Maple and Center).  They also discussed placing limits on private (non-public) meetings between elected and appointed Town officials and developers.

There’s a lot to talk about here, and I hope to do so, but in this post, I’m going to talk about a seeming trivial thing.  Because the one thing that sticks in my mind, from all of last night’s meeting, is the extent to which the Town just seems to make up the zoning rules as it goes along.

The example here is the difference between abutting properties and adjacent properties.  These terms, as used in real estate, are well-defined.  Properties abut if they literally touch.  Properties are adjacent if they are near one another, and no other piece of private property comes between them.  So you and your next-door neighbor on the same side of the street have abutting property; you and your directly-across-the-street neighbor have adjacent property.

If you don’t believe me that adjacent has a well-accepted legal meaning, just Google “adjacent property” and see what pops up.  I realize that’s not exactly legal scholarship.  You can see a full set of citations of specific legal cases here. But the fact remains,  every website that came up, on the first page of results, that offered a real-estate definition, said more-or-less the same thing, e.g.,

Describing a real estate property that is close to but not adjoining another. For example, a house is adjacent to the house across the street because they are in the same neighborhood.”

So, maybe there is somebody, somewhere, who uses some other definition.  But if so, that’s so rare that I couldn’t find an example.

But in the Town of Vienna, it seems that adjacent means abutting if and when the Town says it does.  So, there’s a part of the zoning rules that says that the lowest part of a commercial building must face the adjacent single-family homes.  And for that clause, the Town said that adjacent means abutting.  And then they offer a lengthy explanation of why, in this case, for this particular clause, they are legally justified in doing so.

When the Town came out with its explanation — that adjacent really meant abutting — you could see heads shaking and people muttering all around the room.  Guy across the aisle literally said  “not in real estate it doesn’t”.  Basically, everybody in the crowd that knew anything about it, knew that was wrong.

What I find fascinating about this is that the Town of Vienna has been doing this for decades — adjacent means abutting when we say it does.  You may or may not recall a couple of pages I wrote about Wawa and the lack of a sound-blocking wall at the back of the property.  About what bad luck this was for the people who owned the house behind what is going to be a 24/7 convenience store.  I even suggested a relatively low-cost solution.

Turns out, that property was given an exception to the law in 1974 because the then-director of planning and zoning confused abutting and adjacent.  The zoning rule says a wall is required if there are adjacent single family homes, but his letter describing his finding literally says abutting.  And in this case, the difference between adjacent and abutting is a 15-foot wide disused “alley” between the properties.  (Plus, turns out, he just plain didn’t much like walls along alleys, period.  Which may explain the finding as much as anything does.)

So, somehow, this is our long-standing corporate culture here in Vienna.  A term that appears to have a universally-accepted definition in real estate law (or, at least, I have yet to find anyone who says that opposite) is “not defined” in the Town of Vienna.  So adjacent sometimes means adjacent, and sometimes means abutting, depending on what the Town wants.  And it has been that way here, for decades.

The other thing that struck me as probably legal, but making absolutely no sense, is the classification as to what is residential and what is commercial.  As I understand it, if you have a building full of apartments, that’s residential space.  If you have building full of apartments, with old people in them, as a retirement community, that’s residential space.  But if you have a building full of apartments, with old people in them, and you provide assisted living services, that’s a commercial establishment, and no longer residential space.

Now, for that one, people could reasonably disagree, and people could reasonably classify an assisted living facility as commercial space.  A facility where the main line of business is providing medical care is generally considered a commercial establishment.  So, a hospital or a skilled nursing facility would be a commercial establishment.  By contrast, a facility whose main line of business is housing, and not medical care, is a residence for real estate purposes.  So, a retirement community, or an independent living facility where the only services provided are meals, transportation, and recreation — that would generally be considered a residence.  Assisted living — where there is hands-on help with performing activities of daily living (ADLs) — that can be classified either way.  Fairfax County classes them (and, I believe, regulates them) as health care providers, so they presumably are commercial facilities as far as Fairfax County is concerned.