Post #401: A correction on commercial buildings

In keeping with my last post, I have to correct something I said about structures built “by right” under our existing commercial zoning, in Post #346.

I pointed to 901 Glyndon and a proposed building across from the US Post Office (145 Church) as examples of by-right commercial buildings that were mostly housing.  Both 901 (already built) and the proposed 145 Church consist of two floors of housing over some retail.  They would not meet (what I thought was) the “primarily commercial” standard written into the zoning rules — that commercial buildings have to be primarily (51%) occupied for commercial use.

I have since been told that neither of these buildings were (or are) being built under the standard zoning rules for commercial property along Maple Avenue in Vienna (zones C1, C1A, C2).

The parcel at 901 Glyndon was zoned commercial prior to the annexation of that land by the Town of Vienna.  So the story there is that, despite being shown as commercial (C1) zoning on the Town’s zoning map, and by Fairfax County’s tax map, apparently it’s not.   Apparently, the zoning is something else, and that something else allowed the construction of a building that is primarily housing, as a commercial building.

The story for the proposed  145 Church building is that in the Church Street zone (C-1B), two floors of housing over some retail is OK.  I tried to pin that down by reading the regulations, but failed.  I have to take that as a matter of faith.

Assuming that’s all correct, the upshot is that neither of these buildings establishes any precedent under the standard commercial zoning that applies on Maple (C1, C1A, C2).

I needed to set that straight before proceeding to my next post.

Post #346: The 901 Glyndon precedent needs Town Council attention

As noted in Post #333 and Post #339, the project at 901 Glyndon proceeded as an unquestioned by-right development.

That lot was zoned as commercial property.   In theory — or, at least, historically — commercial zoning meant that at least half the building had to be occupied for commercial purposes.   I.e., any housing had to occupy less than half of the building.  That’s more-or-less the point of commercial zoning — you want to restrict an area to be primarily for commercial use.

Yet, in the case of 901 Glyndon, more than two-thirds of the occupied space is housing.  It’s two floors of condos over first-floor retail space/parking ramp.

We have yet another building proposed in Vienna, 145 Church Street (across from the U.S. Post Office), in a commercial zone, where, again, more than two-thirds of the occupied space appears to be housing.  Same model:  two floors of housing over some retail.   The only information I can find is from a flyer circulated to the neighbors.  Rumor has it that the Town of Vienna will buy parking spaces in this proposed new building.  If true, then presumably the Town of Vienna is on board with it.

For 145 Church Street, that’s within the Church Street zoning district (C1-B), so many special rules apply.  Maybe that’s by-right development, maybe not.  I’m not really sure this counts as an example of by-right construction of a building that is mostly housing, with some retail, in a commercial zone.  But it certainly counts as evidence that this type of construction appears to be profitable in downtown Vienna.

So here are my questions.

First, am I correct in thinking that, historically, the Town of Vienna required that at least 51% of the occupied space in any commercial building be used for commercial purposes?  That seems to be the plain reading of the statute, where “principally occupied and used” for commercial purposes is written into the law.  I certainly recall having heard that this is one reason we needed MAC zoning — to allow mixed-use buildings that would not be otherwise be feasible due to the existing commercial zoning requirement that buildings be used primarily for commercial (not housing) purposes.  (The idea being that second-floor retail space commands such low rents that it makes a building uneconomic.  And you’d have to have half the second floor be retail or office to meet the “principally occupied” clause.)

Second, what changed, exactly, to allow primarily residential buildings to be built, by right, in the commercial zone?  Is there some legal fiction involved (e.g., they now count the parking places along with the actual occupied area, and the retail space with the associated parking is half the building?)  Or does Planning and Zoning simply ignore the “principally used” clause, as long as their is some retail space on the first floor?

Third, is this the intent of the law?  At some point in the distant past, Vienna Town Council passed the zoning regulations as they now stand.  Presumably, the intent of that portion of the law was to make sure that Vienna’s commercial districts were used for commerce.  But now, with no public discussion, the interpretation of that law appears to have changed materially.  Now, apparently, if a building has some of the occupied space devoted to commercial activity, Town staff interpret that as satisfying the regulations for by-right construction in the Town of Vienna commercial zone.

This is now an important point, because the 145 Church Street proposal makes it seem that construction of this type may be profitable within the Town of Vienna commercial zone.  In other words, the change in Town staff’s interpretation of the law may actually result in new buildings being built, based on that new interpretation.

I’m neither for nor against this new interpretation of the Town’s commercial zoning.  If we’re going to have mixed-use buildings, I’d rather have three-story 35′ (plus parapets and decorations) than 62′ (including parapets and decorations).

But I do think that the Town Council ought to step back and ask, in public, is this what we want?  Is by-right housing, with some retail, on Maple Avenue, what the Town of Vienna wants as its future?  (Rather than simply stumble into it, as a side-effect of Town staff’s interpretation of statute.)

And here, I am specifically calling on all those people who made a big deal about MAC protecting the Town of Vienna, because those mandatory review processes in MAC were supposed to guarantee a quality outcome.  About how awful and dreadful it would be to allow by-right construction in place of MAC construction.  All of you people — and here, I think our Department of Planning and Zoning requires a specific mention — all of you should have some public discussion as to what you make of the 901 Glyndon precedent and the proposed 145 Church building.  Because if Town staff’s interpretation of the law now provides a back-door approach to profitable by-right construction of housing on Maple, that needs to be acknowledged and dealt with in a rational fashion.  Not just ignored until the next big building goes up on Maple Avenue.

If this is the new normal for by-right construction along Maple, then, among other things, that shifts the balance of power between developers and the Town when bargaining over MAC proposals.  For example, the Director of Planning and Zoning briefly mentioned the option to change MAC to a three-floor limit at the ends of Maple (two floors of housing over some retail) and reserve four-floor construction for the core of the town.  From the standpoint of economics, that would not seem to be feasible if two-floors-of-housing-over-some-retail is a by-right option.