Post #323: Revising MAC? Time is short.

Posted on July 22, 2019

As much as it pains me to say it, I’m going to continue to write about the future of MAC development on Maple Avenue.  As of now, not only is there no forward motion on revising MAC, I’m not sure that the Town of Vienna government is even capable of making significant changes to MAC, based on the process used so far.

My main point here is to remind people that time is short. 

  • Based on the time it took to arrange the last extension of MAC zoning, if the Town Council wants a further extension of the MAC moratorium, then it would have to act no later than its 9/16/2019 meeting.
  • Looking at the scheduled meetings (at this link) there’s only one Town Council meeting between now and then.  That’s the 8/19/2019 meeting.
  • There appears to be nothing else scheduled to allow for further discussion of changes to the MAC statute.

Bottom line:  I don’t think there’s enough time between now and the scheduled end of the MAC moratorium (November 15) for any truly substantive make-over of the MAC statute.  Certainly not, once you realize that even if there were some agreement, it would take some time — possibly months — to go through the legal processes require to enact changes to Town ordinances.  And there’s almost certainly not enough time between now and 9/16/2019, the meeting at which the Town would have to start the process of extending the moratorium, assuming it takes as long this time as it did last time.

An emergency ordinance is NOT an option here, in case the Town misses some deadline.  If the Town misses this deadline, I’ve heard some people claim that the Town could pass an emergency ordinance to extend the moratorium.  An emergency ordinance temporarily bypasses all the time-consuming legal steps that would otherwise be required.  But I think that’s not correct.  Certainly, not as I read the law.  (Read it yourself if you wish, on this web page.)

In particular, the law with regard to emergency ordinances says:

Emergency ordinances shall ... be limited to the immediate preservation of public peace, property, health, safety or morals. ... 

(b) If any emergency ordinance shall fail to receive the affirmative vote of two-thirds of all councilmembers, such measure shall cease to be before the council as an emergency measure. ...

So as I read it, just messing up your scheduling doesn’t cut it as an excuse for an emergency ordinance.  And an emergency extension of the MAC moratorium would require five votes, and so might not pass anyway, given the current Town Council makeup.

The upshot is that either we extend the moratorium, in a timely fashion, or we pick right back up where we left off, in November, with MAC as currently written, meaning, with more proposals for big lot-filling buildings.

So, time is short.  There’s a hard deadline fast approaching.   There’s only one Town council meeting before that deadline. 

What’s the plan?  Is there a plan?  Who is in charge of making a plan?

Additional detail follows.


Let me start by recapping where we stand.

Originally, there was a 270-day moratorium on new MAC applications ending in June 2019.  A few things to note about that:

  • This was passed at the 9/17/2018 Town Council meeting.
  • The moratorium was a direct consequence of the huge public pushback on 444 Maple West (150+ apartments plus retail, footprint larger than a football field, 60′ tall, corner of Maple and Nutley.
  • The 270 days pushed the end of the moratorium to after the May 2019 Town elections.
  • Department of Planning and Zoning (DPZ) staff were sure that this was more than enough time to allow for revisions to MAC.
  • Others thought differently.  Most notably, Councilmen Noble, Majdi, and Springsteen all said, in various ways, that this was not enough time.  This was said particularly forcefully by Councilman Noble.
  • The Town allowed two additional MAC applications to be submitted before the start of the moratorium.  (380 Maple West, 37 condos plus retail, Maple and Wade Hampton; Sunrise assisted living at Maple and Center).

The Town held two joint work sessions (Town Council, Planing Commission, Board of Architectural Review). 

  • There was one joint work session on revising the MAC ordinance on 3/20/2019.
  • A second joint work session was held on 5/1/2019.

That moratorium was extended and is now set to expire on November 15, 2019.

  • This was the result of an abrupt about-face by town staff.  In the 3/20/2019 joint session, they sure that there was more than adequate time.  By the 4/8/2019, they were sure there was not.  No explanation for the change was asked or offered.
  • Note the lengthy period required for extending the deadline:
    • At its April 8, 2019 meeting, Town Council set the date for a public hearing.
    • The Planning Commission held a public hearing on April 24, 2019
    • The Town Council published a notice of intention to adopt.
    • The Town Council adopted that on June 3, 2019.
  • All in all, it took nearly two months to go through the legal processes required to extend that moratorium.

If that’s the typical timeline, then when would the process for extending the MAC moratorium beyond November 15 have to get started?

  • The answer I come up with is sometime in mid-to-late September.
  • There is only one Town Council meeting scheduled for September, on 9/16/2019.  (The first Monday in September is the Labor Day holiday.)
  • There is only one Town Council meeting scheduled between now and then, for 8/19/2019.

I admit that I fear strategic incompetence here.

  • There is yet another big MAC building slated for my end of Maple:  A Kensington Assisted Living to replace the former BB&T bank, 415 Maple West
  • Kensington assisted living was canvassing houses north of Maple Avenue circa 8/15/2018 regarding a proposed assisted living facility.
  • During the MAC moratorium, Town Council was shown a request by Kensington to purchase the public alleyway behind that lot.
  • That suggests that a) they are indeed thinking of a big building, and b) Town staff were proceeding with business-as-usual despite the moratorium.
  • If the moratorium lapses for even one day, that will give Kensington the opportunity to submit a proposal.
  • And, as with the Sunrise and 380 West proposals, if they slip it in during that lapse, the Town is legally obliged to accept it.
  • So, any “accidental” slipup in the process to extend the moratorium allows the last known MAC applicant to get the process started.  For yet another big building in my neighborhood.