Post 247: The hundred-day rule

Posted on April 22, 2019

This is a re-posting of material that I posted earlier this year, with just a little additional information.  The gist of this is, maybe now is a good time to review the 100-day rule that the Town adheres to in rezoning matters.

Nearly every other government entity in the Commonwealth of Virginia gives the governing body (.e.g., Town Council, City Council, County Board of Supervisors) one year to make rezoning decisions, once the Planning Commission has reached a decision.  But in the Town of Vienna, we say that the Town has just 100 days to make such decisions, including both the decision by the Planning Commission and the decision by the Town Council.

And when you figure out how long it takes the Planning Commission to come to its decision, then factor in the need for a public hearing by the Town Council, this means is that you get some very rushed decision-making by the Town Council. 

Let me give you a two nearby examples.

Town of Herndon, Virginia

Here’s what Herndon says (.pdf), emphasis mine:

“5. Time Limit for Town Council Action. The town council shall have one year from the acceptance of the initial application to make a final decision on a zoning map amendment. Any change or revision to an application submitted by the applicant in writing, or orally at a public hearing before the planning commission or town council, shall constitute a new application with respect to the time in which to act. For any of the above time limits, the applicant may agree to additional time.”

Town of Leesburg, Virginia

Here’s what Leesburg says (.pdf), emphasis mine.

“3.2.4 Town Council Review and Decision
Once the Planning Commission has forwarded a recommendation to
the Town Council, the Zoning Administrator shall set a time and a
place for a public hearing by the Town Council. The Town Council
shall act upon a text amendment within twelve (12) months of the
acceptance of the application unless the applicant requests or
consents to action beyond that period or unless the proposed
amendment has been withdrawn

I could go on …. but what’s the point?

The Town of Vienna adopts a ridiculously compressed schedule for zoning decisions, compared to every other entity in the Commonwealth of Virginia.  Note that, in the two Towns above, the Town Council has a full year.  In the Town of Vienna, the Town Council gets whatever is left of the 100 days, after subtracting the time that the Planning Commission uses to make its decision.

I have found (so far) a handful of jurisdictions that adopt a period less than a year.  For example, Blacksburg appears to give its Town Council six months, instead of a year.  The shortest I have found is Isle of Wight County, where their Board of Supervisors has 100 days to make a zoning decision.  And in both cases, that’s AFTER the Planning Commission renders a decision.  Nobody else in the Commonwealth requires both Planning Commission and Town Council to render a decision with a single 100-day period.

And, to be clear, absolutely nothing requires us to do this.   It’s not a coincidence that both Herndon and Leesburg use the one-year standard. Most jurisdictions allow up to a year for rezoning decisions because that’s the maximum spelled out in Commonwealth statute.  Any period up to one year conforms with the maximums set for in Virginia statute.

Commonwealth of Virginia Statute

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).

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 …”

Now, just think about that for a second.  If the Planning Commission has 100 days … well, not in the Town of Vienna it doesn’t.  Because if the Planning Commission took its legally authorized 100 days to make a decision — then the Town Council would have no time.

So, we’ve already established that what we do here, in the Town of Vienna, is different from what Commonwealth law stipulates.  As a practical matter, we give the Planning Commission less than 100 days to render a decision.

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

Here’s what Virgina statute says (although, admittedly, it says “county”):

“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.”

Other examples

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).”

The sole county-level exception I have found is Isle of Wight county, again, emphasis min:

“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:  Whatever it is that’s the legal justification for the Town’s 100-day rule, a) that law is posted somewhere that I could not find, and b) nobody else in the Commonwealth follows that rule, whatever it is, and c) almost every body that I could find explicitly follows the one-year rule laid out in Commonwealth statute.

Commonwealth statute says they have a year to decide.  Why the Town of Vienna — uniquely among all Virginia entities — thinks that both Planning Commission and Town Council must reach a decision within a single 100 day period — I have no idea.  Perhaps because we have not explicitly specified it in Town statute, someone can somehow justify 100 days total as the default.

But whatever the legalism used to justify the current approach, I think the kerfuffle over Marco Polo shows that maybe that’s not such a good idea any more.  I mean, you could very well have a lawyer tell the Town that “the law requires that you do this”.  But if that lawyer does not immediately go on to say “and you could change that”, then that’s not proper due diligence.  Certainly not in light of what happened with Marco Polo.