Post #253: Clarification for Post 245, the BAR meeting

In Post #245, I described the surprise that occurred at the most recent Board of Architectural Review (BAR) meeting.   Read that if you need the background.  Briefly: The building that the BAR passed was not the same as the building that the Town Council approved.

I described what happened, I did not talk about how that happened.  And because of that omission, some people got the wrong impression.  Case in point: A reader asked me how the Director of Planning and Zoning could have allowed a mistake like that to occur.

This made me realize that I should just lay out the situation, as I see it, as clearly as possible.  Even if it seems a little rude to some people.  Because that wasn’t a mistake.

A building proposal under MAC should go the BAR, then to the Planning Commission, then to Town Council.  The problem here is that the plans the BAR saw and passed were materially different from the plans presented to Town Council (although, in fact, views from both sets of plans were presented to Town Council.)  More-or-less a completely different building was substituted, piece-by-piece, mid-stream.

The key point is that the developers can’t just swap out one set of plans for another. It’s not up to them. It’s up to the Town.  In particular, it’s entirely at the discretion of the Director of Planning and Zoning.

For the developers, everything after their initial submission has to be judged to be (and here I forget the exact legal term) “substantially similar to”, maybe it’s “substantially in compliance with” the original submission. The Town will only accept revised plans if the Director of Planning and Zoning says, OK, the new plans are more-or-less the same building as the original plans.

I’m not a lawyer, but that’s my understand of the law.

Under no circumstances should you think that the builders “pulled a fast one” on the Town.  The gradual addition of sketches for a new plain-brown-brick building, while retaining the plans for the previous (and much prettier) “Georgetown” building — that’s not a mistake.  The new plans had to be judged to be “substantially in compliance” or whatever.  So the gradual substitution of one set of plans for another required the full and complete cooperation of the Director of Planning and Zoning.  The wholesale change in the building after it was approved by the BAR was not somehow the Director of Planning and Zoning’s “mistake” or “omission”.  The accurate way to say it is that “this was her doing”.

To me, the clear intent of the “substantially in compliance” portion of the law was to let the builders make small changes, and particularly to let them make the changes that the various Town bodies requested. So, e.g., if the Planning Commission said, we’d like to see more parking, you’d allow the builder to modify the plans at that point to add parking. So the intent was perfectly reasonable.

But I don’t believe anyone expected that this clause would be used to allow, at the builder’s request, the wholesale substitution of one set of building facades for another one.  And, not coincidentally, substitute a much cheaper-to-build structure in place of what was originally reviewed.

So that’s new — the idea that this seemingly-reasonable clause in the MAC statute would be used as a giant loophole.  With the cooperation of Town staff, it can be used to allow the builder to submit plans for a “pretty-but-expensive” building, and then just quietly bury those plans, mid-stream, in favor of a standard set of NoVA-sprawl townhouses.  With blank end walls facing both Maple and Church.

Who knew? I don’t think anybody expected that.

But if you peel back the onion one more layer, you have to ask the following.  Given that wholesale change in the plans, clearly done at the builder’s request, why didn’t the Director of Planning and Zoning go back to the BAR, or to the chairman of the BAR, and at least ask for an opinion? Just as a courtesy.

To be clear, she’s not legally obliged to do that.  Legally, per MAC statute, her word is law in this matter and there is zero oversight of her decisions in this regard.  And so, legally, she could (and did) give the builder what he wanted without bothering to consult with the BAR.  But still, why the stealth?  Why not just ask them?

In any case, we finally got the BAR’s answer last week. That was the first time the BAR had seen the new plans. And we got Paul Layer’s opinion (Chair of the BAR) at that last BAR meeting, and he said clearly, that’s not the same building that the BAR had passed.  “Materially different” was the term of art that he used.

Unfortunately, I don’t think he has much in the way of legal authority over it, at this stage of the game.  I mean, yeah, whatever it is that’s going to be built at Marco Polo has to get past the BAR for final approval.  But I don’t think we’ve ever been in a situation before BAR was given the plans to one building, but Town Council was given plans to two different buildings simultaneously, and pretty clearly passed the building that the BAR had never seen.

So now, I have no clue what happens next. And I’m not sure anyone else does either.  My guess?  Most likely outcome, the BAR will slow this down by a few weeks. Maybe they’ll get some tweaks on those blank brick walls facing Maple and Church. (Murals! Let’s do Murals!  Giant murals here will surely fit in with all the other giant murals we have on Maple and Church.) And then they commence to build the plain brown brick building, not the pretty Georgetown building.

But I think it’s frankly incorrect to call this a mistake.  All credit for this needs to be given to the Director of Planning and Zoning.  Who else helped make that happen, I have no clue.  But under no circumstances should it be considered a mistake.