Post #321: Why doesn’t Sunrise sue the Town now?

At this point, I think it’s fairly well established that, to a significant degree, the Town of Vienna just kind of makes-it-up-as-they-go-along under MAC zoning.  I think, for people who read this website, I don’t need to list the many examples of that.  A quick reminder:  the 100-day-rule that nobody else in Virginia obeys, the four-floor limit that maybe means five floors, the mezzanine rules that don’t apply to “commercial mezzanines”, the mandatory “voluntary” proffer to bury the power lines, changing the rules to make protest petitions harder, and so on.

I’ll just note the most recent one:  Town staff simply gave a developer 4′ of extra room, more-or-less directly from the public street, by proposing to narrow Wade Hampton by 4′ as part of the redevelopment (Post #312).  Now the Town is in the position of maybe-kinda-sorta negotiating to have the developer give that back — after the Town has approved the rezoning.  Because, yeah, sure, that’s a well-specified and orderly process if ever I saw one.  And an example of the brilliant bargaining tactics that have been a hallmark of the Town’s approach to MAC zoning.

But here’s the one that has me puzzled now:  Why hasn’t Sunrise sued the Town?

Here’s the background.  In the 5/1/2019 involving Town Council, the Town Attorney said that if an application met all the required standards under MAC, the Town could not turn it down (Post #261).  If they did, they’d risk being sued for making an “arbitrary and capricious” decision.  This was in a public meeting, mind you.  In essence, the Town’s lawyer sets the Town’s legal position on this, which amounts to a Town of Vienna legal position of “please sue us if we turn you down”. 

(For this next part, I’m not going to provide links to my prior write-ups documenting these facts.  You’ll just have to take it as a given that these things all happened, and you can search this website to find them if you are sufficiently motivated to do so.)

Now, for Sunrise:  At the suggestion and direction of the Planning Commission, Sunrise eliminated retail space.  This was largely to improve the amount of parking available for the assisted living facility.  Planning Commission Chairman Gelb did some shoe-leather research and concluded (based on a nearby Sunrise) that the parking level was probably adequate, though not ample.  Town staff presented charts showing that the proposed parking levels were within the norms required by adjacent jurisdictions.

Sunrise then provided proffer after proffer to improve the parking situation further.  They would have valet parking available at all times to add more usable parking space.  They’d have a $20,000 annual fund to subsidize transit use by employees.  They’d have a transit demand management program.  They’d have employees park off-site and shuttle to the facility.  They had additional usable parking spaces that were not counted by Vienna but that would be used by employees.  They stated (correctly, I believe) that, given the site requirements, the Town was unlikely ever to find another use that required less parking than assisted living does.  They would bar residents from having cars.  I believe they stated their willingness to comply with any further requirements the Town might suggest regarding parking.

It was a good-faith effort, and then some.  And by the end of it, by my calculation, they were providing more parking than any of the surrounding jurisdictions requires for a facility of this type.  Far more than Town staff suggested was adequate.  I even went so far as to suggest that Sunrise could provide much-needed public parking in that structure by eliminating the last vestige of retail space (Post #289).

But the Town turned them down.  Near as I can recall, I heard two objections:  Inadequate parking and inadequate retail space.  That was the point at which I described working with the Town as akin to dealing with someone with severe short-term memory problems (Post #301, search for “irrational and psychotic Town government“).  I.e., it was the Town that suggested they eliminate retail space to favor parking in the first place.

So, “arbitrary and capricious”?  Strikes me that way.  But while Virginia is a strong property-rights state, it also has a strong tradition of deferring to the decisions made by local legislatures.  So it’s not clear that it would be worth suing.

In any case, I was under the vague impression that they only had 30 days or so to act on a rezoning.  After that, it’s final.  Based on this last Town Council meeting, my (again vague) understanding is that the Town pretends that the rezoning occurs when the Town Council votes on it.  So … we’re pretty much at the deadline for Sunrise to file a lawsuit, I think.  I sure haven’t heard that Sunrise has done or is even contemplating any such thing.

I just can’t quite fathom why.  Was the Town Attorney wrong, as discussed in Post #263?  Does Sunrise not consider it worthwhile to protest that zoning decision?  Is it their corporate policy not to sue?  Do they fear retribution from the Town (i.e., slow-walking any further permits and such)?  Do they consider the Town’s decision justified?

I guess we’ll never know.  Going forward, I guess the only important issue is whether or not the Town Attorney was correct in his statement that the Town cannot turn down MAC applications that meet all legal requirements.  If that’s true, then MAC has become just another form of by-right development along Maple Avenue.   I’m pretty sure it was not presented to Vienna citizens as such, and I’d say it’s a fair bet that its creators did not know they were doing that when they created it.