Post #261, review of the 5/1/2019 joint work session

Posted on May 2, 2019

On 5/1/2019, the Board of Architectural Review, and Planning Commission, and Town Council met in a joint work session to discuss potential changes to MAC zoning.  You can find the meeting materials on this page.

The first part of this posting is my overall impression of the meeting.  I follow that with a few key findings.  Then I list a detailed index to my recording at the bottom of the page.

Overall impression

There was almost nobody in the audience.  I noted one developer, and a couple of members of Vienna Citizens for Responsible Development.  I only caught about an hour of the meeting in-person.  I missed the first half hour, and left around 9 PM.  My wife finished making the audio recording, which I have cleaned up, listened through, and posted on this Google Drive directory.  Look for “2019-05-01 …”.

As always, once the Town posts its audio, you should use that.

This meeting went better than the last joint work session, but that’s a fairly low bar.  There was more in the way of serious and thoughtful discussion, and with a few exceptions, less of what sounded to me like position-staking and posturing.

But after listening to the entire tape (all but the first half-hour of the meeting), I’m not sure our Town government is capable of doing this.  This, being, making a series of individual, one-off rezonings along Maple, and having the results turn out well.  This, being, rewriting the MAC code to make that happen.  Or, really, making any material changes to it.  Sometimes, an organization, particularly a government, is just not designed for or capable of doing the task set before it.   It’s not a personal failure by any one participant.  It’s a failure of the system.  I don’t think our system of Town government was designed to do this task.

I could lay out the reasons I think that, but really, who cares.  I have tended to be right about a lot of stuff in this area, but it’s just my opinion.  On that cheerful note, all I can say is, if you have the time, listen to the tape.  Form your own opinion.

I’ll just go ahead and say it.  The only way you’re going to get real change here is to vote the pro-MAC Town Council members out of office.  Anything else is a pipe dream.

Detail follows.

Major take-aways

Of the things that I heard, that made my ears prick up, were the following:

First, if a builder “checks all the boxes” under MAC zoning, then can the Town legally turn down the rezoning?  No. I guess it was good to have that minor detail resolved, what, five years after MAC was passed. You can find this discussion starting about 2:04:00 into the recording, or thereabouts.

And that was not a rhetorical question.  At least some of the people who have been voting on these projects literally did not know whether the Town could turn down projects or not.  Although the Town lawyer give a proper lawer-ly answer, when you boil it down, the answer he gave is, no.  If the Town makes MAC zoning available, any builder who jumps through the hoops to produce a legal building, and meets all criteria, then has the right to build that.  To do otherwise is to make an “arbitrary and capricious” decision.  So, if you simply feel that the results do not fit in with “small town Vienna”, then tough.  If they’ve addressed everything in MAC, the Town has no choice but to approve it.

So, to be clear, the Town has no off switch for MAC zoning.  Having made the offer of MAC zoning, if a builder meets the criteria, they have the right to build.  The only difference between this, and “by-right” building, is the need to jump through the hoops.  The Town does not have the legal right to turn something down just because (e.g.) they feel that the development is too big.

Equally clear, they have no way to obtain anything other than the standard MAC “fill the box” building.  Buildings that occupy more-or-less every cubic foot legally allowable.l  They’ve made that building legal, so that’s what they have to allow.  End of story.   It’s not rocket science.  So if you keep hoping that, somehow, under current law, we’re going to get some other outcome?  You just go on hoping that, because it’s not going to happen.

Couple this revelation with the Town’s continued insistence that Town Council (or Planning Commission and Town Council, depending) has only has 100 days to decide each rezoning (Post #247).  So, it’s downhill with no brakes, I guess that’s the way to say it.   However much of Maple developers want to rebuild, that’s how much is going to happen.  Fast.

Second, around 2:02:00 into the recording you learn a reason that this first finding maybe should worry you a bit.  The current situation was described as an “Oklahoma land rush”.  This was, I think, from the same participant who revealed that developers are already assembling smaller lots in Town in order to combine them into sites suitable for large MAC-style buildings.  So that fellow appeared to have some on-the-ground knowledge of the situation.  Apparently, the word is out that Vienna is ripe for redevelopment.  And so, apparently the redevelopment projects we know about (up through BBT bank becoming a Kensington Assisted Living facility) are kind of just the tip of the iceberg?

The term-of-art that I learned for this situation is “popcorn market”.  Things simmer for a while, and nothing happens.  Then one little kernel pops.  Then two more.  And then the whole batch goes.  My guess is, developers really did not believe that we’d just give away Mayor Robinson’s legacy.  But now it’s common knowledge that we will.  And I expect to hear a lot more kernels pop as soon as the moratorium is lifted in October.

Third, why wouldn’t it be open season on Maple Avenue, if the “bait and switch” used on Marco Polo can sail through with no serious repercussions.  Looks like, as I predicted, there will be no reprimand of anyone (Post 456).  Looks like the Town will just paper over it and move on — under the steady guidance of the Director of Planning and Zoning on whose watch that happened.  You can hear that high point in Town of Vienna governance at 3:03:30 into the recording.

Fourth, the Staff’s idea of modifying MAC zoning is to make no additional restrictions at all for the vast majority of the MAC zone Around 2:51:00, staff presentation starts.  So, in a nutshell, the argument is that because half-a-century ago building heights were raised in the C1A and C2 zones, if you pretend that Center Street is not the center of town but instead make the Town Green the center of town, then the mile of Maple that sits to either side of that should be our downtown.  And so 54′ four stories is correct for that.

I hope you followed that logic.

Oh, but the rest of Maple — the ends of away from the center of town — they never got their height limits raised temporarily in the 1960s.  So the right limit for those C1 areas is 41’/three stories.  And the fact that we already have four oversized MAC buildings in the works, for those areas — at my end of Maple — ah, that’s just another little MAC oopsie.  Forget about it.  (That’s Chick-fil-A, 444 Maple West, 380 Maple West, and Kensington Assisted Living).

And, in addition, on some lots, they’d allow builders to build the type of housing that Councilman Majdi was talking about.  Behind the big MAC buildings that they would put up on Maple Avenue.

Fifth, just for good measure, at 2:56:40, we find out that the reason reason they didn’t have two heights in the first place, or limit MAC to just the central core of town, is that there were property owners on the committee, who owned property at the south (west) end of town, who would not stand for it.  People who were part of the committee overseeing the development of the law demanded that their property receive the favorable treatment of this law.  If you thought I was paranoid when I wrote this page, or this page — well, think again.  Because they were accurate.

So, listen to the recording yourself, maybe you’ll feel differently.  But this left me profoundly depressed.  If I could convince my wife to move, I’d be out of here in a heartbeat.  In hindsight, I made a huge mistake when I  moved closer to Maple.  I did that so that I could be exactly the sort of person that the MAC advocates tout.  So that my kids could walk to school, and so I could run errands without driving.  And instead, I’ll get to spend my declining years listening the sound of the perpetual construction on Maple.  And it looks like the only way to fix that mistake is to go somewhere else.

Detailed index.

Majdi’s Proposal:  The first hour and a half (or so) was centered on discussion of Councilman Majdi’s proposal for changing MAC.  Rather than have one large lot-filling building as is currently the case, Majdi’s approach would ask for a smaller commercially-oriented building on Maple, some surface parking behind the building, and then some form of townhouses/duplexes or other housing at the back of the lot.  And the developer would not be guaranteed 54′ for the Maple Avenue commercial building.  The point is not just to reduce the density of building, but also to provide a transition or buffer between the large commercial building on Maple and the adjacent residential neighborhoods.

You can see this laid out fully in a memo in the meeting materials cited above.

All times below are approximate.

Offset 0:00:00  My tape starts at just about exactly 8 PM, so I missed the first part of the meeting.  This starts in the middle of the discussion of Commissioner Majdi’s proposal for an alternative to MAC. The gist of the discussion for the next half hour or so is that Majdi’s layout may not fit on some lots.

Around 0:00:00, BAR chairman Layer made the point that shallow lots along Maple may not work for this proposed alternative.

Around 00:01:30  We would like to see second-floor office space but the market for such office space has essentially collapsed.  Could the second-floor commercial space be for (e.g.) recreational use (e.g., gym with rock wall).

Around 00:4:30 discussion of the height of the “transitional” residential zone that would stand between the commercial building and surrounding neighborhoods.

Around 00:07:00, discussion of setbacks between the new transitional residential zone and existing residential.

Around 00:09:00, discussion of need for fire truck access, and the lower cost of building duplex-type single family homes versus large commercial structures.  Railroad Cottages in Falls Church were brought up as an example of what could be done.

Around 00:15:00, there are many deep lots past Part Street, not just the Giant Food lot.  So while this may not apply to all lots it would be applicable to many.  And people may consolidate lots.

Around 0:18:00, the idea for second-floor commercial was that if a builder wants the full 54′ for the commercial building, they would need to promise something in return, and second floor commercial space could be one of those promises.

Around 0:19:30, builders are already thinking of Maple in terms of building sites, not lots.  They are already planning how best to consolidate the lots to create the building sites they want.  That’s already going on, right now, on Maple.  This was followed by a discussion of limiting the average square footage of the residences.

Around 0:22:30, Councilman Noble makes that point that while we should be aware of what developers want, we have to focus on what we want.  This is our code, our town.

Around 24:30, the assertion is make that MAC code must be written to be uniform throughout the entire MAC zone.  This segued into a discussion of the limits on using proffers to achieve things under revised MAC, due to legal constraints.

Around 0:27:00, affordable housing comes up.  Conversation then returns to the difficulties of using proffers to achieve that under current Commonwealth law.

Around 0:30:00, limits on dwelling units per acre.  Followed by additional discussion on proffers.

Around 0:37:00, why not set this up as a series of options within the MAC, and have different types of buildings on different lots.

Around 0:40:00, doesn’t this just create an alley between the two buildings per site under the Majdi proposal?  If you leave the residential attached to the commercial building, you avoid that alley.

Around 0:43:00, back to proffers, segueing to discussion of impact fees. And back to proffers.

Around 0:58:30, possible to split MAC into separate zones, and have different rules in different zones.  This was considered and rejected under the original MAC.

Around 1:00:30, back to impact fees.

Around 1:04:00, couldn’t you achieve the Majdi proposal just by adjusting the setbacks already built into MAC?

Around 1:08:00, discussion of structured parking and incentives.

Around 1:09:30, Councilman Noble makes the pitch for pro-actively addressing traffic impacts on the surrounding neighborhoods, rather than requiring those neighborhoods to react, after the fact, once the buildings are up.

Around 1:11:00, many business uses can’t afford $60/sq ft rents (e.g., day care), but second-floor retail is lower-rent, and if we allow four-story, maybe making space for such businesses, in our commercial zone, should be a priority.

Around 1:12:00, Commissioner Springsteen goes through a list of 10 items he would like to see addressed.  Actual building heights exceed 54‘.  The car wash created a narrow alley, he’d like to see MAC changed to avoid that.  We need further discussion of height, density, step-back from Maple, traffic.  More green space.  And address impacts on Vienna schools.  MAC needs to be flexible enough to accommodate the future, because our past predictions of where Maple was going have been wrong.

Around 1:15:00, use the same setback from all residences, including multi-family.

Around 1:18:30, a call for more incentives for green space.

Around 1:20:30, Councilman Noble offered a list of concerns.  We need a “concept of use“, define goals for how we expect the redeveloped Maple to work.  Particularly w/r/t/ 3 or 4 floors.  Building breaks that truly reduce height to 3 or 2 stories, not continuous four-floor height.  Get more accurate photometric views — the car wash views were misleading.  What are current commercial floor heights?  Do we also want to look at the underlying C1 zone — update C1 maybe?  Pros and cons.  Does not like the language of “appearance of four stories“.  This is mid-density housing, not high-density.  We need to have further discussion of affordable housing.  Some of the things used to break up the apparent mass of the building do not appear realistic.  And we need to pay more attention to the provisions allowing properties to be substantially remodeled under MAC (e.g, to add outdoor seating) rather than focus entirely on the tear-downs.  This was followed by an extended discussion of parking and potential uses of public parking garages.

About 1:33:00, Councilwoman Colbert asks to take “small town” out of the MAC code.  Calls for more staff cooperation in traffic studies, more green/open space, better defined building breaks as Noble discussed.  And, can we ask for money to be escrowed for undergrounding power lines, otherwise that burden is hugely unequal across properties.  This led to an extensive discussion of undergrounding the power lines.

About 1:42:00, the idea of having more flexible setback and building break rules, rather than the ones proposed for MAC.  This was followed by a concern about parking that I did not understand.  A concern that we are requiring too much architectural detail. Same with requests for open space and broad sidewalks — let the developers decide?

About 1:52:00, the contrary opinion was expressed — if left alone, developers submit ugly plain buildings, such as the first iteration of 444 Maple West.  Along with the idea that builders do that on purpose — they start the negotiations with a purposefully ugly building.

About 1:54:00, Majdi — they submit a big block to start, and make you chip away at the block. That’s how the negotiations currently work.  The Mayor expresses confidence that the Visual Design Guidelines will solve this problem.  Bar Chair Layer strongly objects to Majdi’s suggestion that this is a method of bargaining, driven by economics.

About 1:59:00, there is a comment, seemingly out of nowhere, that Vienna should not regulate builder’s profits.  No idea what motivated that.  We need to be partners with the builders, not adversaries.

About 2:02:00, we need to concern ourselves with what we want, not with developers’ costs, and if we set the bar too high and nothing gets built, we still have a clean slate to work with. By contrast, once we allow a big new building to be built, then if we regret it, it will still be here for generations.  This argues for setting the bar high, not low.  Err on the side of caution, instead of the “Oklahoma land rush” that is happening right now.  Councilman Noble holds up Mill Street parking garage as an example — the Town held the line, the developer walked away, and the site is still there.

About 2:04:  And nobody was telling us, on Mill Street, that if we said no, we’d be sued.  Contrast that to MAC, where there seems to be a strong sentiment that we can’t say no.  So, what are the legal standards of MAC and when can we say “no” to a builder? Is this a voluntary zoning district or not?Councilman Springsteen says that if a project doesn’t work for the Town, then we can turn it down.

Around 2:06:00, question to the Town attorney.  If a MAC developer has “checked all the boxes”, what are the options for saying no under MAC?  (I have to interject here:  We’re on our 5th project, and this question is only coming up now?)  And the answer from the lawyer appears to be, if they check the boxes, you can’t say no. Unless they violate some aspect of MAC, have some impact that is not addressed, that you can explicitly point to, if they check the boxes, and you turn them down, that’s arbitrary and capricious.  And you’ll have your ruling overturned in court.  But that cuts both ways.  If a building does not meet the design criteria, that would be a reason to have a court reverse a decision to rezone. 

At 2:10:00, the question arises.  Suppose 444 Maple West checked the boxes, but they stuck with their first, ugly design.  Could we argue it was just too damned massive to fit in with the surrounding neighborhood, and turn it down?  There was no clear answer to that question, instead they talked about how they changed the design. I think the answer might have been, the original design did not comply with MAC and so would not have been built.

At 2:13:00, BAR chairman Layer begins his presentation.  I have not provided detailed notes on that presentation.  This, apparently, is an exercise in trying to clarify what we want to see on Maple Avenue.  Layer starts the presentation by more-or-less deriding the use of “small” applied to Maple Avenue, which is a five-lane highway.  Building “massing” refers to the perception of a building, not its actual size (this point was clarified at the first joint work session.)  Apparently later in the presentation, they got into specifics about a redesigned MAC, but without the visuals, it is hard to say what went on.

Around 2:51:00, staff presentation starts.  This was what the Staff was proposing as their version of changes to MAC and response to the Majdi proposal.

Here’s the story.  Historically, in the 1960’s, the Town only raised allowable building heights for commercial districts C1A and C2.  Not for C1.  (Comment:  So not, for example, at the west end of Maple where Chick-fil-a-car-wash, 444 and 380 Maple West are going up.)  The Director Planning and Zoning then declared that the center of town was not the geographic center (i.e, Center Street), but was the Town Green.

From this — from the half-century-old change in allowable building height, and from redefining the center of town — she then declared that our “downtown” should be the one-mile stretch of Maple, a half-mile of either side of the Town Green.  And for that stretch, nothing material about MAC would change.  But for the two pieces on the ends — including the one that already has three tall MAC buildings — they would limit building height to 41’/three floors.

And at 2:56:40, we find out that the reason reason they didn’t have two heights in the first place, or limit MAC to just the central core of town, is that there were property owners on the committee, who owned property at the south (west) end of town, who would not stand for it.  People who were part of the committee overseeing the development of the law, who demanded that their property receive the favorable treatment of this law.

Around 3:00:00, the other idea floated by staff was to divide lots at 240′ in depth, and treating the back edge of the deep lots differently from the front edge.  Basically, allowing the developers the construction of zero-lot-line or village-type housing.  Presumably, there would be no change to MAC zoning for the front of the lot.

At 3:03:30, the final item is discussion of the BAR review of Marco Polo, the mid-stream change in the plans, and how that came about.  I found this downright painful to listen to.  If you take note, the Director of Planning and Zoning started by aggressively answering the question that wasn’t the question being asked.  The question was not about the legalisms of what was approved (her answer). The answer is, who slipped the new drawings in, after the proposal was approved by the BAR.  But, apparently, it worked.  The recording is there if you want to listen to it.  My take on it is that, as I predicted, there will be no fallout from this, the Town will paper over it, and … no clue what the actual building will look like.  And the person who was instrumental in making this happen continues to run the show.