Post #327: Some basic questions to ask before modifying MAC zoning

Posted on July 26, 2019

As I noted in Post #323, the deadline for end of the moratorium on new MAC applications is fast approaching, and the Town government doesn’t seem to be taking any action either to revise the MAC statute or to extend the deadline.

At the end of Post #323, I laid out my biggest fear about some glitch temporarily ending the MAC moratorium.  I’m an economist, and my firm belief is that seemingly crazy things can happen when there’s a lot of money at stake, as there is now on Maple.

In this post, by contrast, I’ll assume the moratorium is extended without a hitch.  Here, I’ll start to list out some big-picture items that I think really need to be aired in public as part of any revision of MAC zoning.

Why?  I’m afraid that any discussion of MAC will immediately devolve into tweaking the details, and will lose sight of some very-big-picture issues.  That’s certainly my impression of the Town’s discussion to date, other than Commissioner Majdi’s proposal.  So, to be clear, this posting on revising MAC has nothing to do with building height, or setbacks from the street, or requirements for open space.  It’s about other stuff.

I’ll try to keep it short, but no guarantees.

1:  Can the Town say no, or is MAC really just another form of by-right development?

In the last joint work session (June 10), the Town Attorney expressed the opinion that the Town Council could not turn down a MAC proposal that had “checked all the boxes” (complied with all requirements such as height, setbacks, BAR review, PC review).  If the developer sued to overturn such a decision, the Town would likely lose due to the “arbitrary and capricious” nature of the Town’s decision.

In Post #321, I asked why Sunrise had not already sued the Town, after the Town turned down their application.  I still firmly believe that Sunrise, simply as a matter of logic, should do that.  (I’m not saying that I want them to, I’m saying that it makes no sense that they haven’t.)  Plausibly, Sunrise already has, but so far all I have is unverifiable rumors on that.

But Sunrise ought to settle this question one way or the other.  If they sue, and a fortiori if they win, then the Town Attorney would appear to be correct.  And at that point, as I see it, Town Council has more-or-less no say over what gets built under MAC.  MAC merely becomes another, somewhat-more-complicated form of by-right development.  Town Council has no choice but to rubber-stamp any proposal that “checks all the boxes”.

I am pretty sure that the people who developed MAC were not aware that it would work this way.   I am fairly confident that MAC was sold, in part, with the notion that the Town Council could turn down projects that they didn’t much like.  If that’s not true — if there’s no “off switch” for MAC — I think we ought to scrap the entire concept and try some other approach.   See next point.

2:  What about alternative approaches, such as Falls Church’s special exception entitlement zoning?

This is fully discussed in Post #306.  In a nutshell:  They don’t spell out what builders can and can’t do.  They spell out what sort of things the City of Falls Church is hoping to get, then the let developers apply for “special exception entitlement zoning”. In effect they say, “make us an offer”.

3: How much will undergrounding the utilities cost?  Could that be better spent elsewhere?

I get the feeling that the Town put a goal of underground utilities into the comprehensive plan without ever pondering what that would cost.  Kind of like buying a car without asking the price, just because you like the looks.  While using somebody else’s money to pay for it.

Now that we have some inkling of how expensive this is (see Post #210), and now that the Town is finally going to commission a feasibility study of the issue (page 356 of the FY 19-20 Town Budget, .pdf), maybe now is the time to have some public discussion about value.  Mainly, the value of a less obstructed view along Maple, versus what else could be done with the (say) $25M that will ultimately cost.  E.g., how much affordable housing could the Town buy with a $25M subsidy?  How much park land could $25M create, similar to the way the Town Green was created?

4:  More generally, what’s the plan for beautifying FrankenVienna?

When the Town or developers present beautiful streetscapes for the future Town of Vienna, they always manage to show the new MAC streetscape in isolation.  They never show you a close-up of the whole block.  They never show you that these pieces of MAC streetscape are isolated chunks, adjoining the existing standard city sidewalks.   And nobody has — not even once — showed you what it will look like if two big MAC buildings both decide to build straight up, five feet off their common lot line.

We’re not developing whole blocks, we’re not developing whole areas.  MAC is set up to develop one lot at a time.  There has been zero consideration for what, if anything, the Town needs to do to deal with the resulting FrankenVienna:  the corpse of the old, existing Vienna into which MAC has, in effect, stitched parts of other cities.  Zero thought about dealing with even the most basic issue of how the sidewalks will hook up and how they will look.

5:  Can we have small-area and neighborhood planning as is done by Falls Church, Alexandria, and … well, just about everybody but Vienna.

What brings this one up is the comparison between the physical size of the Mosaic District and Maple Avenue.  That’s Post #302.  A picture is worth a thousand words here.  This is Mosaic District, to scale, overlain on Maple:

Best guess, that’s likely an upper limit on what could be turned into “a shopping district”, as MAC appears to envision.  If the Town really wants to pursue that “destination retail” and “vibrant, pedestrian-oriented streetscape” stuff in MAC, they really need to start thinking of dividing Maple into separate zones for which something like that might be feasible.  (Which, apparently, was at least done crudely in the original phases of MAC development.)  Instead of what I have termed the first-come, first-served free-for-all that substitutes for planning under the current MAC.

6: Studies that need to be done:  Retail, Schools, Traffic

Retail:  What can I say?  If you look at how (say) Alexandria went about redeveloping some retail districts, one of the first things they did was …. surprise … study the retail.  What’s there, how’s it doing, what else might be viable in that district, and so on.   Here’s an example .pdf.

Except for the categories, their analysis looks remarkably like my survey of Maple Avenue retail:

I’m still amazed that the Town would implement something that potentially changes the entire face of Vienna retail — with no analysis of the impact on retail.  No economic analysis at all?

Let me give you an example of unintended consequences.  In theory, the Town wants to encourage small and locally-owned business in these new spaces.  But my observation is just the opposite:  With redevelopment and installation of expensive first-class retail space, you’re more likely to get national chains.  Just look at what’s going to happen on Mill Street (Post #326) to see half-a-dozen long standing unique Vienna business losing their (admittedly ugly) second-class retail space, in favor of first-class retail space, and a national chain.  To me, the idea of building first-class top-dollar retail space in order to house funky local second-tier retail establishments, I just see that as an unlikely outcome of market-based competition.

My point is, you can just kind of let stuff happen, and we get what we get.  But if you actually have some goals in mind, it’s probably better to ask if your zoning is likely to achieve those goals.  Just putting the phrase “small and locally-owned” business into the preamble of the law doesn’t do much to make that actually happen.

For traffic and schools, all I want is something simple, straightforward, and unlikely ever to be done by the Town of Vienna.  Take existing conditions.  Project additional school-age children and additional traffic at 30% MAC build-out, and at 70% MAC build out.  We really deserve some (ANY) analysis of that, so we have some plausible numbers to look at.


7:  Are we a cash cow for Fairfax?  Can we use that to get Fairfax serious about expanding the permanent classroom space in Vienna.

All credit has to go to Chuck Anderson for the first point:  We pay for our own police, we repair our own roads, and so on.  And nevertheless, we pay full Fairfax County property tax rates.  Is that fair or reasonable, or is that just a vestige of how that was set up 75 years ago?

If the Town can’t get some sort of cash-settlement renegotiation of that deal, then I say it’s high time for our Town government to begin pressing Fairfax to use our excess payments to Fairfax to increase the permanent classroom capacity of schools serving Vienna residents.  One of the great fears of additional development in Vienna is that it will force a school redistricting, which is traumatic to say the least.  Why can’t out Town proactively fight for our share of school capital funds to try to prevent that from happening.

8:  Transforming these rezonings from win-lose to win-win.

One final thing that has amazed me about MAC is that, apparently, the Town was surprised that residents of the local neighborhoods objected.  So let me ‘splain that, really slowly, using small words.

It’s a win-lose situation.  Developer wins big profit.  We lose peace and quiet.  Town wins more tax revenue.  We lose low-traffic streets.  Land owner wins big capital gain.  We lose view of sky.

I am being intentionally sarcastic, but there’s a point here.  Not only is it a win-lose situation, but the Town basically stiff-armed us at every opportunity.  That draws the win-lose situation into stark contrast.  It didn’t much matter what the question was, if it was coming from the peasantry, the answer was no.  (E.g., can the Town please tell us which lots are eligible to sign the protest petition?  No, figure that out yourselves.  Will the Town consider traffic calming measures proactively?  No, wait for it to be a problem then get in line with everybody else.  And repeat.)

Couple that with the perception of more-than-normal profit rates for the developers, as a result of this change in the rules, and you can see that this is the worst sort of win-lose situation.  It’s a rub-your-nose-in-it kind of win-lose situation.  It’s a nobody-is-on-our-side kind of win-lose situation.

I can only guess that the rationale for this attitude boiled down to “because they can”.  I guess they figured they didn’t need to do anything for the neighbors of these projects.  And I guess, in some sense, they were right.  Sure enough, 444 and 380 got approved.  They won.

Let me suggest some other ways this could have played out that might have left a little less bitterness.

Suppose, in my alternative universe, the Town established the MAC rezoning impact fund.   (This is my pipe dream, so I don’t have to specify where the money comes from, but … say, funded by the anticipated additional tax revenues from the first decade of operation of each new MAC building.)

And then, instead of stiff-arming the neighbors, the Town might have said something like this:  We realize this is a negative for your neighborhood, and that the construction is going to blight your lives for several years.  But (fill in some pap here — progress is necessary, it’s for the greater good, blah blah blah) and it has to be done.  But as a gesture of conciliation and goodwill, for the properties most strongly affected (e.g., able to sign the protest petition), the Town will pay your Town of Vienna property taxes for the next seven years.  (Why seven?  A good biblical number.)

Now, that doesn’t really solve anything, right?  We’re still going to get cut-through traffic down my street.  (And I would not have been eligible for the MAC impact zone tax relief.)  But it acknowledges that there is spillover into the neighborhoods, it suggests that the Town is looking out for us, and it makes a tangible gesture — not just words — to get across the point that we, in the adjacent neighborhoods, are taking one for the team, and the Town appreciates that.

It’s about the psychology, more than anything else.  E.g., if the Town presented this as some sort of bribe, you’d probably just tick off the neighbors even more.

Or if not that, them some other forms of Town-financed mitigation of impact.  Just something tangible to acknowledge that there is a problem.  And that somebody at least pretends to be on our side, helping us.

I’d go further and say that in situations where a few houses are extremely adversely affected — and here I’m thinking about the ones directly behind 380 Maple West — that Impact Fund could be used to implement a limitation-of-loss clause.  That if this big building, just across the street, tanks the value of those homes, the Town will absorb the first $N tens of thousands of loss.  Based on some arms-length fair market assessments done before and after construction.  Or some other reasonable method.

OK, and if not this idea, then something else.  Because if you make a situation a clear, in-your-face, shut-up-and-go-away win/loss situation, then you should expect to get some blowback.  And the MAC projects in my neighborhood were very much like that.  Further, the Town should expect the reaction it has gotten, and then some, for every additional neighborhood-adjacent MAC project that it implements from now on.  And if they want to avoid that, they need to fund something to blunt the clear, obvious win-lose structure that they are currently working with.