Post #349: I was given a quick lesson in Town of Vienna zoning

Posted on August 16, 2019

A colleague just sent me an email that was a quick lesson in the complexities of Town of Vienna zoning rules.  My head is still spinning, and that was just about the rules applying to one new building.

As it turns out, much of what I thought was true, when I wrote Post #346 may or may not be true.  I’m still trying to decide if I believe and/or understand what I think I was just taught, about our zoning rules.  The upshot is that Town of Vienna zoning rules are a lot more loosey-goosey than you might think if you just read the plain language of the statute.  And as a corollary, where there is discretion, that discretion can be used to favor or hinder specific projects, depending on … it’s not clear exactly what.

You can find the zoning regulations at this website.  You might want to try to read along, if you read the rest of this posting.

The first thing that stuck out, from this brief lesson, is that Town staff and developers have significant discretion in applying the zoning rules.  Discretion as to what parts they claim apply to a particular project, and discretion as to how those parts are interpreted.  So, as I have guessed all along, yes, the Town does in fact make-it-up-as-they-go-along, to a significant degree, in many cases.

If that’s not enough, the second major item is that the Town Council can waive many (but not all) of the zoning rules, period.  So if they like/want a commercial development, they can (e.g.) allow greater density and smaller setbacks than the law otherwise allows, skip brick walls and other shielding for the adjacent neighborhood, and so on.  Almost anything, as I understand it, other than building height.  Apparently that explains the high density, reduced setbacks, and lack of brick wall shielding for the townhouse condos that went up next to Town Hall.

The third is “determinations”.  If the first two did not provide enough looseness in the rules, the Director of Planning and Zoning can issue a “determination” on any issue for any particular project.  And, once issued, that acts just like it is a part of the zoning rules.   (This “determination” process is why the Wawa is about to occupy a commercial lot, adjacent to residential area, with no brick sound wall separating the two.  Back in the 1970s, a “determination” was issued that no such wall was needed — uniquely for that one lot, in that area.  See this post for description.)

So with that in mind, let me explain two of my own misconceptions about Town of Vienna zoning.   With the idea being that maybe other people were unaware of this.

Misconception #1:  You can’t build a building that is entirely or mostly housing, within the Town of Vienna commercial zones.

Wrong!   You can build (e.g.) apartment buildings, but as I read it, you can only build small apartment buildings if you want to comply with the building code as-written.  I think you can’t, by right, build one that covers the lot, as the MAC buildings do.

Town of Vienna statute has sections that outline what you can and can’t do in the commercial zones.  But you also have ARTICLE 18. – SUPPLEMENTAL REGULATIONS, in the Town of Vienna zoning regulations, which is kind of a set of miscellaneous overrides to all the other rules.

Sec. 18-150. - Multifamily dwelling in commercial or industrial zone.
Any multifamily dwelling erected in any commercial or industrial zone, insofar as such is permitted, shall conform to all regulations applying in the RM-2 zone.

In the RM-2 section (low density multi-family dwellings), you find that you can only cover as much of the lot as is allowed in the RS-16 (single-family-homes) section:

I. Lot coverage. Lot coverage shall be the same as that specified for RS-16 zone.

And in the RS-16 zone, you find that:

F. Lot coverage. Not more than 25 percent of a lot shall be covered by buildings, accessory buildings, ...

So when I put all that together, on any commercial lot in Vienna, you can build (say) an apartment building, as long as it would fit into the same height and lot coverage restrictions as a single-family home.  I.e., no higher than 35′, and covering no more than 25% of the lot.

So any restriction against building all-residential buildings in the commercial zone is an economic one, not a legal one.  It may not be profitable to take that commercially-zoned land and build small apartment buildings.  But I don’t think it’s prevented by law.

But, see intro section:  I believe that the Town Council could make exceptions as they saw fit.  So … other than a 35′ height restriction, it’s not clear that you couldn’t build a lot-filling apartment building on any commercial lot.  As long as the Town Council wanted to see it.

Misconception 2:  You can’t build mixed-use buildings in Town of Vienna commercial zones.

Wrong!.  This one is straightforward, I think.  In the Town’s section on commercial zones, it simply says that you can’t use the first floor for apartments, and that the principal use of the building has to be commercial, not residential.

Sec. 18-73. - Special conditional limitations.
Residential apartment use shall be permitted where:

1.  The apartment is located in a building which is principally occupied and used for other uses permitted in section 18-72;

2. Such apartments are located on a floor above the street floor of said building; and

3. Provided the apartment and buildings in which any such apartments are located shall in addition to the requirements hereof meet all other requirements of law applicable to apartment dwellings.

So, there’s no legal barrier to building mixed-use buildings now.  They can occupy the commercial-building footprint (i.e., almost 100% of the lot, like MAC).  But the apartments have to be incidental — more than half the building has to be for commercial use.

As with the small apartment building exception above, the barriers to doing this would be economic, not legal.  As I understand it, second-floor retail space commands such low rent that builders simply do not want to build it, if possible.