Post #325: Revising MAC? Time is short? Or is time your friend?

Posted on July 24, 2019

In Post #323, I noted that the process for revising the MAC statute now combines  a looming deadline with zero activity.  That obviously makes no sense, so I think I’d like to take a few guesses as to what may or may not be happening.  So please note that while the first section (Past) is largely fact-based, the end of this post (Future) is pure speculation.

MAC Revisions:  The Past

Let me briefly recap the MAC revision process up to now, as I see it.

Design Guidelines Working Group, MAC Ad Hoc Committee.  When the Town  released its proposed revisions to the statute almost half a year ago (see this document, .pdf, dated 2/13/2019), many of the changes were attributed to the “Design Guidelines Working Group” or the “MAC Ad Hoc Committee”.

If you’ve never heard of these Town of Vienna government bodies and/or have no idea who is on them, you are not alone.  By searching the Town’s website, I come up with exactly one mention of the Design Guidelines Working Group, (Town calendar entry for March 13, 2019, with absolutely no other information), and zero mentions of the MAC Ad-Hoc Committee.

Here’s my contemporaneous writeup of the March 13, 2019 meeting of the Design Guidelines Working Group.  As I said at that time, and will repeat here, the  Commonwealth of Virginia’s Freedom of Information Act  (FOIA) makes it pretty clear that when three or more elected or appointed individuals meet to do government business, that meeting must be duly announced, open to the public, and have publicly-available minutes published.  It doesn’t matter what you happen to call the government body that is meeting.

Bottom line:  Those changes came out of a black box.  How they came about, and who participated in making them, are not public information.  That’s completely contrary to the spirit of the Virginia FOIA, and, in my (non-legally-trained) opinion, probably not legal under the Virginia FOIA, if those entities contained three or more elected/appointed Town officials.

Why do I even bring this up, other than for the sheer joy of razzing the Town government?  Do you recall the sneaky little ambiguous clause that got slipped into the revisions, with the intent of quietly getting rid of the four floor limit?  (Probably my best writeup of the issue is in this post, but you can search for others on this website if you wish.)  Guess who wrote that clause?  It was the MAC Ad-Hoc Committee, as shown in the draft MAC changes document.

Now do you begin to understand why these meetings are supposed to be open?  We have no idea whom to thank for that clause.  Or what the underlying motivation was.  Or who may have objected to it.  And we never will.  There is zero public accountability for that little piece of mischief.  Because it was allowed to be done in private, contrary to the Virginia FOIA.

Other changes to MAC were either suggested by Town departments (Planning and Zoning, Public Works), or had already been suggested (by some entity, known or unknown) and at least had had some discussion or ratification in public meetings by the Planning Commission and sometimes by Town Council (in August of last year, I think.)

In terms of timeline, some changes were ratified by Town Council back in August 2018.  Some were suggested by these two black-box groups.  There were two joint meetings of Town Council, Planning Commission, and BAR (March 2019, June 2019).  At the June meeting, Councilman Majdi suggested some fairly substantial revisions, including a proposal for a townhouse “buffer zone” between MAC development and adjacent neighborhoods, and removal of incentives for garage (“structured” ) as opposed to surface-level parking.

At some point in that process, it was deemed critical that all revisions be finished up prior to June 2019 (the initial scheduled end of the MAC moratorium).  Then, at some point, without explanation, that was no longer crucial and the MAC moratorium was extended to November 15, 2019.

And that’s where it stands today.

My take on it is that, with the exception of Majdi’s proposal, the changes in the draft document are a combination of a) tweaks and b) clauses that are more-or-less doubling down on the more objectionable aspects of MAC.  (I’ve written that up several places, such as here.)  And much of it is not merely black-box, it’s black-box-echo-chamber material.  I’m fairly sure that individuals with significant objections to MAC-as-it-stands were not invited to participate in either of the black-box groups (Working Group, Ad-Hoc Committee).

But I have to mention that, in the middle of all this, Planning and Zoning announced that they would, in addition, be overhauling the entire zoning code for the Town of Vienna.  With, at least originally, the express purpose of making redevelopment easier.  Although, on that latter point, when pressed, the Mayor publicly assured us that absolutely nothing about existing zoning would change, that these would be technical corrections only.  And then, subsequently, Commissioner Majdi asked that the existing commercial zoning be changed to match the “MAC landscape”, meaning, broad sidewalks, buildings directly adjacent to the roadway, and enhanced parking lot landscaping requirements, among other things.

So, don’t lose sight of that one.  Because that one either will or will not be done to make redevelopment easier.  Will or will not be merely a set of technical corrections with no substantive changes in law.  Will or will not force all new commercial construction to be MAC-look-alike, except for overall building height.  And so on.

They haven’t even produced a document yet, and I am already utterly confused as to purpose and extent of the exercise.  And if I’m confused, my guess is that’s because they are confused.  For sure, we went from the Mayor assuring us that this would result in no changes, to what appeared to be general agreement on Town Council to make major and substantive changes to existing commercial zoning (e.g., there’s no front-of-store parking under MAC).  With no analysis or discussion!  And my take on it, after closely following how Town government operates for more than a year now, is that when there is chaos like that, somebody is going to take advantage of it.

MAC revisions:  Some possible futures.

The central question here is, why is there no activity on revising MAC, in the face of a looming deadline?  I’ll offer up my guesses as to possible answers.

1:  Simple mistake.  My father-in-law used to tell me, “Never assume conspiracy when incompetence provides an adequate explanation of the facts.”  So I can’t discount that possibility that the right people have not yet realized that Moratorium Deadline + No Public Meetings = Train Wreck.

2:  They’ve agreed to extend the moratorium, they just haven’t bothered to tell the citizens.   Plausibly, there is no issue here in the minds of key policy makers because there is already an informal agreement to extend the moratorium.  Recall that Tim Strike’s key platform element was a call for a two-year moratorium on new MAC applications.  Maybe key Town government officials have realized that’s about the right timeline, and now it’s just a matter of going through the legal processes, starting at the next Town Council meeting?

3:  Pro-MAC Town Council members have figured out that it’s better to let the moratorium lapse than to engage in further discussion on changes to MAC.   This is the rationale for the last section of Post #323.   E.g., maybe the Town Attorney can think up some justification for requiring a super-majority vote to extend the moratorium.  (In which case, it likely won’t be extended, given the makeup of Town Council.)  Maybe they can slow-walk the processing just enough to miss a critical deadline.  You never can tell, which is why I hope the Town Council discusses this sooner rather than later.  As noted in the post cited above, even a temporary lapse will let at least one proposed MAC project (Kensington assisted living, at the former BB&T bank site, file.)

4: There’s no time for discussion because the Town is on its “summer vacation” schedule.  And so they intend to ???? in the Fall.  The Town holds few public meetings during the summer, presumably to allow elected and appointed officials ample opportunity for vacations.  Perhaps its either not possible, not really feasible, or simply “not done” to hold additional meetings on substantive issues during this time.  In other words, nobody wants to spoil their summer by being forced to meet about this stuff.  But if so, there’s still no publicly-announced plan on how they will proceed in the Fall.  And if so, I think that requires extending the moratorium.  Or, if that doesn’t happen, see point 3: above.

5: Pro-MAC Town Council members actively want to postpone any discussion until after next year’s election.  I think we’ve already seen a call for the Vienna Business Association to form a PAC for next year’s election, to put the peasantry back in its place.  (Clearly, they didn’t bother to read my postings about the utter lack of campaign finance rules in the Town of Vienna.  I.e., no PAC needed.)  So, if they proceed with the current Town Council makeup, they’d have to take other points of view seriously.  But if, with the help of the Town’s movers and shakers, they can buy  win the next election, they can avoid all the unpleasantness of having to pay attention to those outside of their own echo chamber.


Conclusion:  After attending both of the big “joint sessions” on MAC revisions earlier this year, I despaired of the Town ever being able to make material changes to MAC.   That process is too large, too chaotic, too un-directed, and too open to being steered by a small group of insiders (see “black box” above).

I think that, at this point, I’m sticking by that conclusion.  I don’t see the process in place for any orderly revision other than tweaking it as the insiders want to see it tweaked.  And until some process is announced that will allow for a more thorough re-thinking (e.g., three-story limit, binding requirements for additional green and open space), I remain skeptical that anything of substance will change.

As to how this will all turn out, I can’t even guess.  Seems pretty clear, between the last election, and the results of various polls (mine included), that people really want some material changes to the MAC standards.  Not rocket science, what they mostly want is smaller buildings and more green space.  Whether there is any feasible way for this town government to achieve that, I have no clue.