Post #481: CORRECTED: Are we really going to open up the entire zoning code, right now?

 

In the original version of this, I was incorrect when I said I could not obtain a copy of the scope of work for this task.  Councilman Noble has pointed out that I could, in fact, find an earlier draft of the scope of work for this task, posted as the last item on an October 28, 2019 Town Council work session.  The earlier draft was posted for that work session, but not for the Town Council meeting.  I apologize for my error, and have modified this post accordingly.

Complete this sentence:  If you find yourself in a hole, the first thing to do is to:

A) drop the shovel.

B) pick up more shovels.

I’m going for A, but I would accept the traditional “stop digging” as an acceptable answer as well.


Background

If there is anything I have learned from sitting through countless Town Council meetings, it’s that Town staff put the controversial stuff last on the agenda.  And they make it sound as innocuous as possible.

Maybe that’s purely by chance, but I have always assumed they do that as a way to thin the crowd out before the controversial stuff gets discussed.  Those Town Council meetings go on for a long time.  In fact, the only thing I have learned, for certain, from attending these meetings is that my bladder disqualifies me from public service.  (If you see a fat guy sprinting for the door after the first few hours of one of those meetings, that’ll likely be me.)  And I don’t think I’m alone in that.  But whether it’s the call of nature or just plain fatigue, you’ll often see that Town Council chambers will be nearly empty by the time they get to the good stuff at the end of the agenda.

So I have learned to read the last item first, and make sure that I (think) I understand it.  The item of interest for tomorrow’s Town Council meeting is:

I. 19-1527 Motion by Councilmember Potter for comprehensive reorganization and update of Subdivision and Zoning Ordinances, Chapters 17 and 18 of Town Code.

Caveat:  I supported Steve Potter for Town Council.  But you probably aren’t going to remember that by the time you’re done with this.

This is a long post.  Links to specific sections are given directly below:

The scope of work (SOW) isn’t public, and I bet the SOW includes a lot more than just the simple project as described in the Town Council meeting materials.

Making this one big package deal is a strategic blunder.

You’d be smarter to break this into two pieces:  the non-controversial purely technical changes that merely clean up existing code, and, separately, all the other would be everything else that Planning and Zoning is going to add in.

Are we really going to make the same mistake all over again, and do the rewrite in an information vacuum?  Or are we going to wait until various studies are completed, and actually based the rewrite on information?

Rewriting the by-right zoning is serious stuff, compared to MAC.  Are we going to have any serious guidelines and guide rails written down, or is Town Council’s input limited to occasional and informal guidance to Town Staff?

Put in writing that the MAC zoning rewrite was not finished, and that the things in the existing red-lined copy are far from agreed-upon by Town Council.

If you keep digging yourself into a hole, do you really want to pick up more shovels?  Maybe just skip this additional chaos for the time being and fix only what needs to be fixed right now.

 


The devil is in the details … that you’re not allowed to see.

I was incorrect when I said I could not obtain a copy of the scope of work fo rthis task.  Councilman Noble has pointed out that I could, in fact, find an earlier draft of the scope of work for this task, posted as the last item on an October 28, 2019 Town Council work session.  I apologize for my error.

That said, if you look at the draft SOW, yeah, it is a lot more extensive than the staff summary of the project that is in the agenda packet for this Town Council meeting.  I’ll include the October 28 draft SOW, and you are invited to compare it to the description of the same project for tonight’s Town Council meeting.

If you read the staff description of this, in the meeting materials for tomorrow’s (12/9/2019) Town Council meeting, it sounds fairly innocuous.  Here, let me just copy that in here:

The goal of this proposed project is to reorganize the subdivision and zoning ordinances so that regulations are logically organized and easy to understand through use of plain language, charts, tables, and illustrations. In addition, the subdivision and zoning ordinances should be updated so they are in compliance with state statutes and recent Supreme Court decisions with regard to sign regulations. The updated ordinance should be consistent with the Town’s Comprehensive Plan and address areas where the Code has been silent and zoning determinations have been made over the years by the Town’s zoning administrators or where regulations are currently lacking, e.g., parking requirements for all uses.

So, that sounds like a simple technical exercise, right?  In theory, then, taking this at face value, all that the Town staff is doing is paying a consultant about a quarter-million dollars to tidy up the existing code, and maybe fill in a few small gaps.

In other words, to all appearances, the end product of this is going to be a version of our zoning code that functions identically to the code we have now.  Plus a few fixups for minor technical issues (e.g.) matching current state and Federal statutes, and adding explicit parking requirements for land uses that don’t already have an explicit parking requirement.

And once upon a time, that was exactly how this was discussed in Town Council.  I clearly recall the Mayor flatly stating, at the 1/7/2019 Town Council meeting when this code rewrite was first discussed, that the “cleanup” of Town zoning (other than MAC, at that time) was going to change nothing about the zoning itself.  And now, this new incarnation of that seems to say the same thing.

Well … not so fast.  Are you sure about that?  Are you sure that’s all they are going to do?   Are you sure they aren’t going to change the zoning code in any material way?  And how would you know if there was something else involved?

Compare to the October 28, 2019 draft scope of work shown below.  Near as I can tell, pretty much everything is up for grabs.  Just scan down to the “review and revise” portions of the scope of work.   This is about as far from “nothing will change” as one can get.  It reads more like “they have the right to change anything about the zoning”.  But you read it yourself and you decide.

Draft Scope of Services to Reorganize and Update Subdivision and Zoning Ordinances - Oct 2019-1

 

To have any real inkling of what’s actually being planned, you’d have to see the scope of work for the proposed contract.  And now we get to the fun part.  Purely based on credible rumor, I believe that the entire Town Council has seen the scope of work that has been proposed for this quarter-million-dollar contract.

And because they are all aware of what’s in the scope of work, the Town is now able to have Town Council vote on this contract, with its defined scope of work — without ever making the scope of work publicly available.  (It’s certainly not in the agenda packet for tomorrow’s meeting, and if its posted on the Town website, I sure haven’t been able to find it.)  Town Council has already seen it and discussed it, in private.  So they can now make their legally required public vote … without letting the peasantry citizens see it.

Now, we certainly get to see the scope of work for other contracts.  On that same agenda, the scope of work for figuring out the cost of putting the Maple Avenue power lines underground is freely available to the public (see Post #210 for my guess).

But not the scope of work for this item.  At least, not until the Town Council passes it.

Merely as a matter of logic, because Chapters 17 and 18 include MAC zoning, the scope of work has to go far beyond merely tidying up the loose ends of the zoning code.  But you would never guess that from the description of this agenda item.  So they’re going to rewrite MAC zoning as part of this.  And heaven only knows what else.  And that, by definition, is going to include substantive changes to the zoning.  So we know that the actual scope of work has to go far beyond simply tidying up the code.  But, because we can’t see that scope of work, we have no idea how much farther it goes.


It’s going to be a package deal, isn’t it?  Where have I seen that strategic maneuver before?

Here’s the first thing I noticed.  By doing it this way — one uber-project to make all changes in the code — they are going to mix together the purely technical “clean-up” of the zoning code with whatever additional substantive changes that Planning and Zoning and their chosen consultant would like to see in the Town of Vienna. 

I will bet you $100 that they’re going to use the same trick they used with MAC zoning the first time.  They’re going to present Town Council with the entire packages of changes, and say, you have to vote it up or down, you can’t change it.  (I only learned that fact, about MAC zoning, from talking to a Town Council member a few weeks ago.)

Of course, I can’t know that, because I, as one of the peasantry citizens, do not get to see the scope of work.  But I’ve seen enough of their handiwork to be willing to offer that bet.

And with that guess, I now find it impossible to believe that the actual scope of work is as bland and pro-forma as the staff description of it makes it seem.  Why?  Look at the opportunity this affords to the Department of Planning and Zoning, if this is indeed to be an up-or-down vote.  They can hold the bland and purely technical piece of the work hostage — the Town can’t get it unless it also swallows whatever additional changes Planning and Zoning wants the Town to have.

The only thing this mixed-up approach does is give Town staff leverage over the Town Council.  Town Council will (I expect) be given an all-or-nothing proposition.  Vote the new zoning rules up or down.  And by intentionally mixing these two products — the cut-and-dried, and the controversial —  if Town Council wants the code “cleanup”, they’ll have to swallow all the other changes that the ever-benevolent Planning and Zoning Department deems that the Town of Vienna needs.  And if they can’t stomach those additional changes, they’ll have to vote it down, and so flush a quarter-million-dollars down the toilet, and still “need” to have the Town’s zoning laws updated.


First suggestion:  Break the RFP into two pieces.

Here’s the problem with the current approach.  Right now, we have two separate products mixed together in a single item. And I am betting that the Town Council will be forced to accept them or reject them as a single package deal.

First, we have the purely technical fix-ups of the code — the task that would replicate our existing zoning, just in a cleaner, easier-to-understand format.  That’s what this task was described as, originally.  Presumably, that part is completely non-controversial and really could be relegated to Town staff and consultant, with the explicit instruction that absolutely nothing about existing Town code should change.  The explicit goal of this task is simply and purely to get a cleaned-up version of our existing code.

And it would be perfectly fine to put little placeholder sections in that code, to accommodate whatever Town staff intend to do with the second task.  So, e.g., if they are going to make up parking regulations for certain types of establishments that are not in the current code, they can have little blank numbered sections for them — with no content — in this portion of the task.

Second, we have the “mischief” part of the task, where Town staff and their consultant are going to go about changing the zoning code.  Some of those changes are likely justified, such as making our sign ordinances compliant with state and federal law.  Maybe you can take those few, seemingly cut-and-dried tasks, and add them to the first task.  But I think the odds are excellent that they aren’t going to stop there.

One way or the other, my assumption is that Planning and Zoning is going to try to modify the law so as to bring more density and development to Vienna.  Near as I can tell, they view that as their mission.  And, as with the “appearance of four floors” clause in the last draft of a revised MAC statute, they are quite good at using uncertainty and ambiguity of language to try to enact major functional changes in the zoning law without having anybody notice it until it’s too late.

As far as I can tell, a) there’s no need to do both pieces of this at once, and b) the only reason to do it this way is to be able to pressure the Town Council when it comes time to vote on the “cleaned up” zoning code.

I believe that, purely as a matter of good government, Town Council should not allow itself to be put in that position.  They should require that this task be broken into two pieces, and then acted on separately.

The first piece is the purely technical clean-up of the existing code.  The goal of that is to produce a zoning code that is functionally identical to what we have now, just more straightforward and understandable.  For that, there should be no need to consult with Town Council, or to ask citizens their opinions, or anything like that.  That task merely replicates the rights and restrictions that currently exist, in a cleaner form.  A small set of well-circumscribed changes might also be included, such as changes to make our sign ordinances comply with state and federal law.

The second piece is for any changes to current code that Town staff and their consultant feel are necessary or desirable.  This is the part where (e.g.) Planning and Zoning can go ahead and try to tell us how much we need N-story buildings downtown (five, six, whatever).  And this is the part where Town Council better have some say in it, and where it might be desirable to have some input from the citizens.

In fact, I would go so far as to say that the Town might want to do the first part, enact it into law, and see how it works, first.  And then when they have a fully-tested “cleaned-up” zoning code that is functionally identical to the existing code, then — and only then — proceed with the package of changes that Planning and Zoning says we need.


And what about (fill-in-the-blank) study?

Haven’t we learned anything from the way MAC proceeded?  It certainly started to sound like we we starting to learn.  But with this next step, it’s back to the ready-fire-aim approach that the Town used with MAC.

Let me just give some examples.

The Town (courtesy of Councilman Noble) added a study of impact on traffic on Maple Avenue.  Such a study was supposed to be done when MAC was passed, but somehow that got dropped off the agenda.  And the current study was an afterthought to the “multimodal” study, and it most assuredly has problems (Post #381, for starters).  But with Councilman Majdi’s suggestion of replacing the consultant’s lookups with actual traffic counts for existing conditions, it could be used to provide some guidance for what we are buying into, in terms of additional traffic congestion.

Is the Town really going to go ahead with rewriting the zoning — again — without getting a proper traffic study done first?

Then there’s the planned economic analysis of Maple Avenue Currently, for MAC, the entire analysis of the Maple Avenue retail sector boils down to “Build it and they will come”.  And by that I mean, there was no analysis whatsoever.  The Town finally wised up, and somehow got Fairfax County to pay for some sort of economic analysis of Maple.

So, the Town is going to proceed with a full rewrite of the entire zoning regulations before they have that study in hand?

I guess I should mention that, five years after passing MAC, the Town is finally going to study how much it costs to put the power lines underground.  And … they’re going ahead with rewriting the entire code (including MAC) before that study is available?

And ditto.


How about some written guidelines and guide rails to place some limits on this process?

As I understand this, because Councilman Potter is introducing this motion, he is going to take principal responsibility for overseeing Town Staff, and being, in effect, the liaison between Town Staff and Town Council.  I have considerable respect for Councilman Potter, but I would feel a lot happier if there were some written guidelines as to how this should proceed.

Revising the by-right zoning is far riskier than MAC ever was.  MAC was optional, there were process measures designed to give some citizen and Town input into the resulting approvals.  But now we’re revising not only MAC, but all the by-right zoning in Vienna — including the residential areas.

That’s risk for two reasons.  First, it’s by-right development.  If you put it into law, there’s no further Town review of what developers can or can’t do with their land.  They have to adhere to (e.g.) zoning rules, building codes, and to the BAR’s standard for acceptable architecture.  But that’s it.  If they check all the boxes, they can build it.

But the main reason it’s so risky is that there’s no going back.  In Virginia, it is all but impossible to “downzone” land, once you’ve allowed certain types of by-right development.  Unless you can claim that an outright error was made, once the Town develops a new set of property rights (i.e., a new zoning law), it really doesn’t have the option to change its mind.  If Planning and Zoning manages to slip in some clause that results in increased housing density, and this is only discovered after-the-fact once builders find that loophole — well, tough.  There won’t be one danged thing the Town can do about that.

So I’d like to see some guard rails and guidelines for this process in writing.  Things that the staff are not allowed to do, and things that they must do, as part of the process.

The one clear and obvious one, to me, is that anything that comes out of this rewrite that will, may, might, or could possibly increasing the density of development in Vienna needs to be clearly and unambiguously flagged.  The other is that all changes in the permitted uses of land have to be flagged.  The last thing we want is to find out that some abstruse clause in the law now allows (e.g.) apartment blocks in residential neighborhoods, or some such.

Note that I’m not being prescriptive about what can and can’t be done.  I’m just asking for a fair fight.  Keep it above-board


Make it clear that the MAC red-line has not been agreed upon.

And speaking of keeping it clear and above-board, I’d like to see a statement by Town Council, in writing, that the existing MAC rewrite was not finished and had not been agreed upon by Town Council.   There are a LOT of objectionable things in that rewrite.

More-or-less, after the anger that many Town residents expressed about 444 Maple West, certain Town Council members and Town Staff simply doubled-down on the most objectionable aspects of MAC. As one example, they took the size of the 444 Maple West building and used it as the template for acceptable building size in MAC.  As another example, they added a seemingly ambiguous statement that would have the effect of allowing as many floors as you could fit in a building, as long as the exterior only looked like four floors.

What I’m afraid is going to happen is that, in turning this task over to Town staff, in its current state, staff are going to claim that they have no choice but to in include all those objectionable changes.  (Because, well, Town Council turned it over to them with those changes in place.)  So to forestall that, please get it in writing that those changes had not been agreed to.


If you keep digging yourself into a hole, do you really want to pick up more shovels?  Maybe just skip this additional chaos for the time being.

Again, respect to Councilman Potter for taking this task on.  But maybe this is not the time to open up the entire zoning code.  Particularly given our recent history in this area.

I mean, the whole MAC zoning thing has gone so smoothy (yes, that’s sarcasm), you have to question expanding the task at this point, rather than fixing what’s directly in front of us.  As in, if it ain’t broke, and so on.

Let me just take stock a bit.  I count what — three, four lawsuits so far?  A brand new significant pedestrian hazard on a walk-to-school routeSubstitution of building plans in the middle of the approval process.  Ah, don’t forget about quietly giving away four feet of the public right-of-way for benefit of a developer.  Heck, substituting one building for another, after approval.  So far, for two out of four projects, the locally-known builder got the zoning, then turned around and sold the development rights.  Ah, and we can’t leave out the mythical hundred-day rule that the Town (and only the Town) adheres to.  And four-floors-really-means-five-floors (which is still in the draft revision of MAC zoning), and mezzanine rules only apply to residential mezzanines, and so on.  Oh, and the fact that we dove into this having no clue what it would cost to put utilities on Maple underground, and are just now getting around to finding out.  And had no idea how much MAC would contribute to Maple Avenue traffic, and are only just now finding out — but the Town Council still hasn’t discussed that in public.

And that’s just the stuff we’re aware of.  Who knows what else has gone on and is going on.

And so, at some point, if you step back from it a little bit, you have to ask:  Why on earth are you choosing to do this additional rewrite, of all the entire Town zoning code, right now?  And using the same set of actors who brought you the many points of chaos noted above?

So, maybe — just spitballing here — instead of opening up the entire Town zoning code, given our recent track record — maybe we should do something more limited in scope.  Such as, we could just skip this and go back to the plan that we have right now, which is to make some limited, targeted changes to the commercial code only, including MAC.  Instead of hoping — despite all the evidence so far — that this time, things will go smoothly.