Post #263: An answer to my first question, and some corrections to what I said about the “statement of purpose and intent”.

In my just-prior post, I asked this question: 

If the Town cannot turn down a MAC proposal where the builder has "checked all the boxes" (i.e., complies fully with MAC statute), how did the Town turn down the first Marco Polo proposal?  

I have now gotten an answer that makes sense, and it affects not just this question, but also whether or not the “statement of purpose and intent” has any use.  (And finally, whether it’s a really bad idea to rename it to be just the “preamble”).

Turns out, what the Town’s lawyer has said about checking the boxes and the statement of purpose and intent — that may or may not be true. At least that’s what my expert says.

What I took away from the last few public meetings is that if a building meets all the legal requirements of MAC (“checks all the boxes”), the Town cannot turn it down.  And that the “statement of purpose and intent” is unenforceable — it has no legal value.

And so, my question was, how did they turn down the first Marco Polo?

But what my expert tells me is something quite different:

  1. If the Town turned a project down, the developer would have to sue to overturn that.
  2. Courts are reluctant to overturn legislative decisions as “arbitrary and capricious”.  The presumption is that such decisions are reasonable, and it’s up to the developer to prove otherwise.
  3. Because this works via lawsuit, the Town does not, in fact, have to state why they turned a development down.  That would only have to come out in any subsequent lawsuit.
  4. The Marco Polo developer did not sue — which suggests he didn’t have much of a chance of winning.
  5. Because the “statement of purpose and intent” is in the law, and developers are aware of that, the Town can, in fact, point out the ways in which a building fails to meet that “statement of purpose and intent” as a way of saying that their decision was not “arbitrary and capricious”.

So if my expert is correct, the “statement of purpose and intent” does, in fact, serve an important role in the MAC legislation.  It’s not, as I said in my prior post, mere window-dressing.  And that kind of strongly suggests not changing the name of that to anything else, such as “preamble”.  You need to continue to make it clear that this is the purpose and intent of the law.

By contrast, if the Town’s lawyer is right, then the statement of purpose and intent is mere window-dressing.  Call it what you want.  Throw it away.  Makes no difference.

So I’m back to saying the following.  In addition to the 100-day rule, I think the Town needs to have this particular point clarified.  By hiring outside experts if necessary.

I mean, it’s fairly important to know whether or not you can turn down a project.  In addition to knowing how much time you have to consider whether or not to turn it down.  And, from what I can tell, what the Town actually did, with the first Marco Polo, appears to contradict what the Town is now being told it can do.

The huge drawback here, of course, is that if the Town routinely allows buildings that violate the “statement of purpose and intent”, then it’s on shaky ground if it turns one down.  Which is exactly what Vienna Citizens for Responsible Development pointed out about the size of 444 Maple West/Tequila Grande.\

This could turn the “new MAC” into an opportunity for a reset in that regard.  If the Town materially alters the standards for these buildings, it should be free to disregard past decisions when judging buildings in the future.

So, as I now understand it:  If the Town had vigorously adhered to that statement of purpose and intent, it would likely be on safe ground turning down any building that, in its judgment, significantly violated that.  But once you’ve established a track record of approving anything, regardless of size or impact, you may be judged “arbitrary and capricious” if you start turning buildings down.