Post #483: CORRECTED: A big strategic mistake

Posted on December 9, 2019

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.

This post is a re-analysis of the proposal to allow Planning and Zoning to rewrite the entire town zoning ordinance, including MAC zoning.  It boils down the lengthy Post #483 into a straightforward summary.  The summary is the title of the post.

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.

The setup

The last item on tonight’s Town Council agenda is this:

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

To translate:  The Town Council is going to stop looking at revising MAC, or revising parts of the commercial code to match MAC.  Instead, they’re going to do a mash-up of the MAC rewrite and a second proposal to “clean up” the rest of the zoning code.  That “cleanup” proposal was previously billed as a purely technical exercise, one that would make no substantive changes in Town of Vienna zoning.  But with this motion, Town Council will fold everything into one big code rewrite, under the direction of Planning and Zoning.  Basically, they are punting, handing this task to Planning and Zoning, providing some oversight (I guess), and then, as I understand it, they’ll vote on the whole ball of wax at the end.

I think this is a big strategic mistake, for those of us who don’t much like MAC as-written.  And in this post, I’m going to explain why.  In a nutshell, if you do this, you give Planning and Zoning the vehicle that they will use to cram MAC down your throat, at the end of this process.  It’s a variant of the classic poison-pill strategy.  With this approach, if you want the zoning code cleaned up, you have to swallow the poison pill as well.

Now, mere citizens are not allowed to see the scope of work for this task.  But as I vaguely understand it, the proposed voting scheme for this is modeled on the original MAC.  Whatever package Planning and Zoning puts together will be put in front of Town Council for an up-or-down vote.  Town Council will have to accept the entire rewrite, or reject it.

Assume that’s correct, for now, and try to figure out how this will turn out, in the end.  Assume further — and I’d say this is pretty much a given — that Planning and Zoning will have larded this revised law with many potentially objectionable clauses to encourage greater density of development, larger buildings, and so on.

Or, simply assume that they return a package that leaves the current MAC language unchanged.  But now, instead of MAC being a stand-alone piece of legislation, it has been firmly embedded in the rewrite of the existing code.  Now you can’t separate the two.  You can’t have one without the other.  That’s the core of the problem.  And that’s source of the leverage you are needlessly giving pro-development forces.

So, just for a moment, assume that happens.  Assume that the final product has either the existing MAC language, or language preferred by Planning and Zoning that would allow even larger buildings.

What are a Town Council member’s options at that point?

If you don’t want the revised MAC, or the many other pro-development provisions that Planning and Zoning is likely to stick into the revised law, you’d have to vote against the whole package.   If you have the courage to.  Because at that point, you’ll be accused of being against Progress, of wasting the Town’s time, wasting the quarter-million-dollar contract.  Standing in the way of a much-needed cleanup of the Town’s zoning ordinances.  Tossing the baby out with the bathwater.  And so on.

And if you give in to all that, and vote for it, and use the rewrite of the code as cover for your actions — then you’ll have had MAC crammed down your throat.

I can surely understand the technical merits of revising the code all at once.  And I understand the amount of time it would save Town Council to punt on revising MAC, and have somebody else do it.  Those are laudable goals.

But, to me, having worked for a decade in a Federal legislative-branch agency, this proposal looks like a variant of the classic poison-pill strategy.    The poison pill here is MAC, and all the other clauses our pro-growth Planning and Zoning department will put into the revised law.  And the sugar coating is the presumed need to … simplify?  streamline? … our current and functional zoning code so that it’s easier for developers to understand.  The only difference between this and a classic poison pill is that, traditionally, the poison pill was used to kill legislation, under the assumption that it would force legislators to vote it down.  Here, by contrast, it looks like the strategy is to get the Town Council to swallow it.

So, again, whatever the technical merits, by rolling this up into one big project, you are setting yourself up to allow pro-MAC pro-growth pro-developer interests to feed you a piece of poison-pill legislation at the end of this process.  That’s a big strategic mistake.

What could you do instead?

First, and most obviously, one option is simply not to do this.  Continue on the path you’ve already started down, which is to revise MAC and make the relevant portions of the commercial code adhere to the “MAC streetscape”.

Apparently the pro-MAC Town Council members have decided to deride that as a “piecemeal” approach.  So keep your ears open, and count the number of times the word “piecemeal” comes up at tonight’s meeting.

But I could as easily deride the proposal as “if it ain’t broke, don’t fix it”.  MAC is broke.  It got some sitting Town Council members voted out of office.  The rest of the code is awkward, but it works.  Buildings manage to get built under it.  I certainly don’t see any shortage of new houses being built, for example.

Second, if you proceed with this, you need to preserve your right to separate out the votes for the various pieces of it.  That’s the only way to extract the poison pill.  You have to separate the poison-pill portions (MAC and all the other pro-development language) from the sugar coating (the zoning rewrite that was originally proposed — the purely technical cleanup of the existing zoning.)  And give yourself the option to vote on those pieces separately.

And in this case, if you game it out fully, you’ll realize you need to break this into at least three pieces.  (And so, this corrects what I wrote in Post #481.)  What are those pieces:

  1.  The purely technical rewrite that preserves existing zoning unchanged, just streamlines and simplifies it.
  2. MAC zoning.
  3. All other changes that Planning and Zoning has introduced into the code.

Why do you need three pieces, and not two?  Because Piece #1 will, by definition, contain the existing MAC zoning rules.  And if you don’t break MAC out separately, then if you vote for Piece #1 — the plain-vanilla “clean up” that this code rewrite was originally billed as — you’ll be voting to reinstate MAC as it is currently written.

So it really does need to be broken into three parts.  With that, Town Council will have the option to take or reject the parts as they see fit.

Let me put this another way:  If you truly believe that a revised MAC and other pro-development changes really are in the best interest of the citizens, then let those parts of the revised law stand or fall on their own.  This poison-pill approach is, at root, an admission that you are unwilling to do that.  It’s an acknowledgement that now that we’ve seen what MAC is bring us, the average Vienna citizen may not want what you are offering.

Other red flags

I realize that when I write a post like this, if I paid any attention to social media, I’d get a lot of what I call kumbaya blowback.  Oh, gosh, I’ve made all these mean assumptions about how Planning and Zoning will behave.  I haven’t given certain Town Council members credit for their ability to keep this process in check.  Can’t we all just be friends and assume that everyone is working for the greater good.  And so on.

Well, my observation is that Planning and Zoning considers it their duty to get as much development as possible in the Town of Vienna.  Full stop.  In a sense, that’s pretty much what the current crew was hired to do.  It’s their mission.  And so, because I don’t want to see a bunch of “medium-density” development here, I don’t want those people running the show.  I think that’s pretty straightfoward.  This is business, not friendship.

But now let me line out a few additional red flags that parts of this process have raised.

This next paragraph was wrong.  Town of Vienna posted a draft of the Scope of Work as the last item in their 10/28/2019 Town Council work session.   I missed that by looking only at the current Town Council meeting posting, which had only the staff description.  The draft SOW is included here.  If you read the “review and potentially revise” lines, I think you can see that the contractor has broad scope to make significant change in … pretty much every aspect of Town of Vienna zoning.

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

First, we as citizens don’t get to see the documents that Town Council has been looking at, as they prepare to vote on this.  In particular, we don’t get to see the scope of work for the contract that would be issued to cover the bulk of this work.  If you know anything about the Virginia Freedom of Information Act, and have read my writeup of the hoops that the Town would have to go through to sidestep the guarantees written into the act, that’s one big red flag.

Second, the bland and plain-vanilla description offered by Town Staff, in the meeting materials for tonight’s Town Council meeting, cannot possibly be an accurate description of this project.  Because now they’ve rolled the MAC zoning rewrite into this.  And so, we’re already starting off with the public-facing portion of this — the stuff we’re allowed to see — presenting a misleading picture of the actual task.  That’s a second red flag. (That’s an exaggeration, I thing.  If I’d done my homework and looked back to the October work session, I could clearly see that more-or-less everything in Town of Vienna zoning is up for modification per the Scope of Work.  So the short description posted for this evening’s Town Council meeting is, in fact, not an accurate description of the full breadth of the scope of work.  But if I’d done my homework, I could have known that.)

Third, the language the Town has used to sell this rewrite of the zoning keeps shifting.  Which, to me, means that either that somebody is lying about it, as a matter of expediency, or that there really is no firmly-defined and clearly-circumscribed scope of work.  I.e., it means that Town of Vienna government, as a whole, hasn’t really said with they intend to do with this.

The very first descriptions of this code-rewrite proposal touted it as a way to get more, bigger, and faster development.  I documented that over a year ago, in this post.  But when Town Council discussed it on 1/7/2019, some Town Council members ran away from that as fast as they could.  The Mayor herself is on tape unambiguously stating that the goal of this rewrite was NOT to change any aspect of Town zoning.  You can see my writeup of that in this post from January 2019.

And now it has devolved into typical Town-of-Vienna hash.  You can’t be quite sure what the goal is.  The public-facing writeup appears to be pap written to assure us that nothing will change.  But the actual task now includes the MAC rewrite, where I’m pretty sure the sentiment of the majority of Town Council is that something had to change.  And the actual scope-of-work document that will direct the contractor’s work is secret.  (Wrong.  A prior draft is available, as noted above.)  The continuously-shifting description of the task is yet another red flag.

Fourth, we are making the same ready-fire-aim mistake that was made with MAC.  This process is set to proceed before the Town has done its due diligence in the areas of traffic, economics, and costs imposed on the Town (in particular, cost of burying utility lines).  Not to mention, before the Town has surveyed public opinion on proposed changes.

It’s not like this is some uniquely new  idea — get your facts together before you proceed.  When Councilman Majdi voted against the original MAC legislation in 2014, he plainly said that the Town needed to do a traffic impact study, a parking impact study, and an economic impact study before proceeding with MAC.  So at least some people recognized the need for this information half a decade ago.

And now, the Town is finally getting its act together, somewhat, to get that information.  But they don’t have it, yet.  And the fact that they are willing to proceed with the rewrite anyway, before the information is in hand, tells you that the place no value on that information.  To me, that approach says that these studies are all for show, and the planning process in Vienna — such as it is — isn’t going to be affected by what those studies actually say.

Finally, directly addressing my lack of “kumbaya”, I don’t think there’s anything to suggest that town staff will “play fair” during this process.  In fact, I’d say the preponderance of evidence strongly suggests otherwise.   In a nutshell, if you give them the opportunity to have leverage over this process, I’d say it’s a pretty good bet that they will take full advantage of that.

And on that note, I’m just going to copy in a shorter version of paragraph from Post #481, and call it a day.

Let me just take stock a bit.  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.

In the immortal words of Yogi Berra, it’s deja vu all over again.