Post #706: MAC zoning repealed

Above:  The Merrifield Mosaic District, overlain on the Vienna MAC zone, drawn to scale.

The section of last night’s Town Council meeting regarding MAC zoning was fairly contentious.  In the end, the Town Council voted to repeal MAC zoning.  This was no particular surprise, to the point where I’d already recycled my now-obsolete signs.

If I had to pick an item that encapsulated it, it was Councilman Noble’s discussion of the preamble to the MAC statute.  That’s the section that has all the nice language about preserving small-town Vienna, and so on.  That’s where “parks and plazas” comes up.  That’s the section — I might say, the only section — that preserved the spirit of the original, long-ago citizen direction for MAC.  The overriding goal of the citizens, from the original MAC development efforts, was to preserve the small-town nature of Vienna.  And that’s exactly what that preamble to the law said.

As it turns out, they didn’t realize that the preamble was not legally enforceable.  So it sounded nice, but, as I described it a year or so ago, in the end, it served more as camouflage than as anything else.  It made it sound like the law was there to preserve small-town Vienna.  But it had no practical or legal effect.

And, in the end — some five or six years after the law was passed — that was finally formally expressed by the Town’s attorney.  The preamble had no legal status.  And if a building met all the technical requirements in the statute — height, setback, “open space”, draining, and so on … the Town Council could not legally turn it down.  Or, if they did, they’d likely be sued and lose.

The second telling item was again from Councilman Noble, which was the MAC requirement that all of Maple avenue be treated identically.  That was not part of the original plan, and apparently that was not supported by Noble in the original drafting of MAC.  But that’s certainly one aspect of MAC that I’ve harped on quite a bit.  What they ended up with is a nearly-two-mile stretch of road, with nothing even approaching a plan for development.  Apparently this was recognized by some as a significant flaw, even as the law was being passed.  All I did was manage to rediscover something that the MAC forces already knew about.  Hence the picture above, comparing the size of the Mosaic District and the MAC zone.

To be clear, the repeal of the MAC statute is hardly the end of it.  It just shifts this struggle to another arena. 

After they passed MAC in 2014,  the Town re-wrote the Town’s Comprehensive Plan to match MAC.  That rewrite occurred in 2015 (or 2016, depending on whom you ask and/or which date serves Town staff’s purposes in any particular circumstance).  In effect, they embedded MAC-like zoning into the Comprehensive Plan, after they passed MAC.  (Which is, in fact, backwards — you’re not supposed to change the zoning, then change the plan to match.  Not, at least, by the way I read Commonwealth statute in this area.  But it is what it is.  And it is what they did.)

So the game plan now shifts to the complete rewrite of all the zoning in Vienna.  A few meetings ago, soon-to-be-ex Town Council Member Majdi, with support from Council Member Patel, asked that the MAC-like language be removed from the comprehensive plan (see Post #765).  With the idea being that if you’re going to get rid of MAC, then, logically, you should modify the comprehensive plan to match.

The pro-development forces forcefully beat back any such effort.  And they wrote a contract for their chosen consultant that, in several different places, carefully directs the consultant to make sure that the re-written zoning matches up with the master plan.  (Which, by Commonwealth law, it should).

The upshot is that resurrection of MAC-like zoning is baked in.  They have carefully set this up so that their chosen consultant must re-create some form of MAC zoning.  But this time, it will explicitly be by-right zoning.  That is, once passed, developers will have the right to develop to the standards expressed in the zoning.  No messy public hearings.  In fact, no input from our elected representatives at all.  So, Town Council’s hands will be clean.  All power over development on Maple, under this new approach will be ceded to the Town bureaucracy.  And all discretion over what is and isn’t allowed will be solely in the hands of the Director of Planning and Zoning.

And if that doesn’t make you uneasy, you haven’t been paying attention.  Marco Polo Gate?  Four floors really means five floors?  Mezzanine rules only apply to residential mezzanines.  We need buildings taller than MAC allows, not shorter.  Those of you who have tracked this for a while know what I’m referencing above.  Those of you who haven’t, you can search this website for those key phrases.

So, we’ll see what comes out of this, a year or so from now.

Separately, if I had to put out the single thing that is most screwed up about this new approach, it’s the following:

  1. Under MAC, the binding constraint on building size along Maple was a political constraint.  It was all about what the citizens would accept, and how much negative externalities (in terms of traffic, noise, and so on) Town Council could successfully impose on surrounding neighborhoods.  Purely based on economics, builder probably would have built even larger buildings than were allowed under MAC.
  2. The current process for rewriting all the zoning in Vienna specifically excludes any formal input from Town Council.  That is, specifically ignores political constraints.  As I understand it, Town Council doesn’t get to direct this at all.  There will be some consultation with the Planning Commission (only).  And then, in the end, Town Council will get to vote yes/no on the entire package of redrafted zoning laws.

This is what I have referred to as the cram-down strategy (Post #483, 12/9/2019).  (Yeah, I’ve been complaining about this for that long.)  Town Staff are going to direct the rewrite of the law, probably to be as favorable to development as possible.  Then they’re going to cram it down Town Council’s throat.  All one piece, no separate votes on separate items.  So Town Council’s only option will be to toss out a quarter-million dollars’ worth of consulting, and a year of staff work, and so on.  Or pass whatever it is that Town Staff decides to cram down their throats.

If you wonder why I have come to loathe the Old Guard here in Vienna, it’s for stuff exactly like that.  No self-respecting legislative body should ever willingly let itself be put in that position.  But, it’s a way for them to win, even if the majority of the citizens don’t want it.  So, I’m betting that they’ll win.  And I guess that’s all that matters.  So that’s the plan.