Post #273: More detailed followup to the last Planning Commission meeting

Posted on May 13, 2019

The Planning Commission met last week to discuss the proposed Sunrise Assisted Living facility at Maple and Center (and other issues).  My initial posting, with link to audio recording, is Post #269. There were a handful of things about the discussion that confused me, and I’d like to bring those to light.

Conditional use permit.

For those of you who have not studied our arcane laws, some types of businesses are “conditional uses” under MAC (and other) zoning.  In other words, the owner of the land has to ask the Town for permission to use the land that way.   The purpose of this presumably is to allow the Town to do adequate fact-finding to make sure this “conditional use” does not become a public nuisance.

For example, under our standard commercial zoning, outdoor dining areas are a conditional use.  You have to ask the Town, and the Town will investigate to make sure that the proposed dining area does not (e.g.) cause undue problems for adjacent property owners.  Formally — and I’m not entirely sure I have this right — but I think that, formally, it’s the Town’s Board of Zoning Appeals (BZA) that makes the yes or no decision on the conditional use.  After the Planning Commission directs the BZA to look at the issue.

In this case, an assisted living facility is a conditional use.  But, as Commissioner Miller pointed out, we are absolutely not competent to pass judgment on that.  We’ve never had one in Vienna before, and we don’t even know what the right questions to ask might be.  By contrast, Fairfax County deals with these all the time, and in fact has a Health Care Advisory Board with experts in this area.   Wouldn’t it make sense, then to ask Fairfax for some help here, up to and including the requirement that Sunrise pass through Fairfax’s standard review?

This seemed pretty reasonable to me.  For example, I’ve looked up the zoning, and Fairfax County won’t let them build one of these on less than five acres of land.  Fairfax also has considerable “open space” requirements for these facilities.  Wouldn’t you like to know why Fairfax County does that?  Particularly when we’re getting ready to squeeze one of these into a less-than-one-acre site?  I mean, Fairfax may do what it does for reasons that have nothing to do with us.  But wouldn’t you want to know that first, before you approve the building?

This suggestion that we consult with Fairfax County provoked a vehement reaction from the Director of Planning and Zoning. She launched into her standard chapter-and-verse put-you-in-your place routine, the one that she uses so effectively to shut people down in these discussions.  That came out full force at this point.  And then other MAC-loyal members of the Planning Commission chimed in with their versions of what a terrible idea this was.

Only after-the-fact do I think I know why that provoked such a reaction: It disrupts the schedule. Based on one reliable source, the Director of Planning and Zoning has already promised Sunrise that they will have a Town Council vote before the new Town Council members are seated circa July 1.  Requiring any thoughtful review or consultation with Fairfax would disrupt the schedule, and so threaten the promised vote by the existing pro-MAC Town Council.  It might prevent them from shoving this one through the process in time.  And so no such review could be allowed.

I just want to highlight the process here, as I see it.

The proposal seems to me like a pretty reasonable thing to do.  We in fact are not competent to do this.  As a Town, we have no experience in this area, and we don’t even to know the right questions to ask about an assisted living facility.  By contrast, Fairfax has significant experience, and an expert advisory board.  The idea of at least asking Fairfax County a few questions about this seems — obvious, to me.

But this idea wasn’t judged on is merits.  Near as I can tell, it was judged on the fact that it threatened the relentless drive to get these MAC projects approved.  It was judged in the context of the mythical hundred-day-rule (post #247). It was judged in a context where Town staff require that these projects be hustled through the process with no pauses.  It was judged on the legalisms of the law, or at least based on a story about that.  It was judged on fairness to the developer.  It was judged on everything but the basic premise that we actually need to know what we are doing in issuing a conditional use permit.

Even more than the bait-and-switch that occurred with Marco Polo, I think this illustrates one aspect of MAC that needs to be forcefully expunged from our Town staff.  Because they aren’t going to change unless somebody clearly says that they have to stop doing this.  If it takes an explicit clause in Town Code that says “We have one year to make rezoning decisions”  — the way all of our neighbors do it — then I say, let that be the very first change that the new Town Council undertakes in this area.  Because as long as you have Town staff bird-dogging the elected and appointed officials to pass these buildings under pressure, we’re going to continue to make poor choices.   As in, at this point, we still don’t know what was passed for the Marco Polo site.

Planning Commission has 100 days.  Get that.  That’s in Commonwealth statute.  But the rest of the hustle-these-through approach, that’s entirely voluntary.

Which brings me to my second point.

Parking and time

The biggest sticking point of the discussions was parking. Unlike any other building in Town, for this one, the Town just asked the Sunrise how much parking they think they need.  And then they used that figure to set the parking.  (After reducing it for various MAC “incentives”).

One adjacent business owner offered objections to the building based on both the size of it, and the lack of parking.  He bought commercial property there years ago under one set of rules, and now the Town has changed the rules to allow a vastly larger building to overshadow his business.  This is, in effect, the same argument that the neighbors of 444 Maple West and 380 Maple West have made.  And it seemed to fall on equally deaf ears here.  His objections about the size of the structure appear to have been entirely forgotten by the end of the meeting.

That said, several other adjacent businesses, and several Commissioners, found the parking study to be inadequate.  They just plain did not think that the parking, as specified, was enough, given the size and use of the building.  They went so far as to raise objections to data used by Sunrise to set their target parking rate of 0.4 spaces per “unit” (per residential room in the building).

Now I want to say three things about the process.

First, Town staff had already set this up so that the building meets the MAC requirement for parking. They had already accepted the builder’s figure of 0.4 spaces per unit, then reduced that to account for various MAC incentives. Put aside the fact that they just made that up (that is, this procedure whereby the accept what the developer says is needed, for this novel business type in Vienna).  They have declared that this is what MAC requires, so that’s the legal MAC requirement.

So, legally, I don’t think there’s a thing the Town can do about the parking.  Town staff have already done what the builder wanted.  This building passes the MAC requirement for parking on account of that.  And at some level, it then doesn’t matter that everybody thinks the parking level is bogus.  It’s legal, because Town staff said so.

Second, it took a suggestion from the audience to bring to light one possible solution to this parking issue.  But the proposed solution requires major changes in the building, and a major change in the Town’s informal (not legal) policy of requiring retail space at absolutely every MAC location.  In other words, it’s going to require somebody to convince the Mayor that maybe she doesn’t get her “destination retail” space on this one.

To me, the telling remark here was made by Chairman Gelb:  Maybe this points out the benefit of having more time to review these.   Because at this point the options are a) accept the skimpy parking that Town staff have declared to be legal or b) shift gears in a major way on both the building and on the unofficial Town policy of requiring “destination retail” in every building.

And, per my first section above, all of this has to be done under the schedule imposed by Town staff that assures a Town Council vote before the new members are seated.

And so, I’ll just say it:  It’s damn the torpedoes, full speed ahead.  Caution be damned, good sense be damned, carefulness and thoughtfulness be damned.  Parking be damned.  Four floors be damned.  The legal definition of mezzanine be damned.  Anything that gets in the way of getting this thing approved by the existing Town Council be damned.

This is the pro-development-at-any-cost attitude that the new Town Council has to deal with.  And this, I think, dealing with it should be its first order of business regarding MAC zoning.

And when I step back from this push to ensure that these buildings are approved, don’t you have to ask, how can that be?  That’s my final section.

Is this all just theater?

So, the Town allowed two additional MAC buildings to be submitted prior to the moratorium deadline.  And by all appearances, these buildings are pretty much guaranteed to pass under the current pro-MAC Town Council.

But we have been repeatedly assured that our elected and appointed officials really do have the right to say no, at any point, if a building is not right for the Town of Vienna.

I can’t quite reconcile these two points in my head.  And I’m afraid that the answer is that this is 99% theater.  You let the citizens vent.  You let the various elected and appointed official have their say.  But in the end, you tweak the project as it is marched through the system by Town staff.  The conditional use permits are never in doubt, the majority votes are a foregone conclusion, and the ultimate passage is not in doubt.

In some sense, then, with the current pro-MAC Town Council, every developer already has an approved MAC building.  They just have to submit the plan and jump through the hoops.

And so, what is the Town’s overall plan for Maple Avenue?  What’s the next step the Town will take to transform Maple into this “vibrant” and “walkable” asset to the community?

Turns out, as we are going about it currently, we’ll know the next step in the Town’s overall plan for Maple Avenue when the next developer tells us what it is.  I think that’s the second thing I would try to change about Maple Avenue zoning.  If you’re going to do wholesale urban renewal, then you really need to have a plan to match that.