Town Council is planning to pass the new Town of Vienna Zoning Ordinance (Mainly, replacing Section 18 of Town code) tomorrow, Monday 10/23/2024, per this Town of Vienna webpage.
As much as I’d like to rehash old grievances about Town of Vienna zoning, this post focuses on the new zoning. I just want to pin down the details on a few items that seem key to me, about changes to the zoning of the Maple Avenue commercial district, in Vienna VA.
For this, I am reading from the document labeled as the most recent draft of the new zoning, on the Town of Vienna website. You can download it, and the new zoning map, from this page on the Town’s website.
Accommodating by-right high-density housing.
To me, the biggest change in the new zoning is that it makes it much easier to build high-density housing along Maple Avenue. By that I mean apartments, condos, and similar. Part of the new zoning normalizes that, as a routine use of land in the Maple Avenue commercial district, and makes the ability to create such a building a permanent right that belongs to anyone owning property along Maple.
Under current zoning.
Right now, two things hold back the creation of apartments, condos, and similar high-density housing in the Maple Avenue commercial district.
The first is that, under current zoning, buildings in the commercial district must be used primarily for commercial purposes. You could build (e.g.) apartments along Maple now, but at least 50% of the building must remain commercial space. In particular, if you want a three-story building, then you end up with a floor and a half of retail space, of which, by necessity, that half floor is going to be second-floor retail. Which is, by report, a complete economic loser.
The second is that the overall height of the living space — the distance from ground level to the top of the flat roof — is limited to 35 feet. An unspecified additional amount may be added in the form of parapets or in equipment mounted on the roof, above that 35′ limit. But that’s not livable area. The claim is that this isn’t enough floor-to-ceiling room, per floor, for (say) a three-floor building, to make attractive, modern apartments. Bottom line is that everything needs 10-foot ceilings, nowadays, and with the required thickness of the floors and roof, you can’t squeeze that into a 35-foot overall height.
To summarize, as it stands, if you want to build a large commercial building along Maple, you can include apartments or other housing in such a building, under the current zoning. But it does not appear economic to do so. That’s because the apartments or similar can account for no more than half the enclosed space, and they have to have ceilings that are, by modern standards, inferior, low, ceilings.
As a result, our commercial district has remained largely a commercial district.
Under the new zoning: New permitted use.
First, under the new zoning, anything above the first floor of any building in the Maple Avenue commercial area may be used as housing. That’s by-right, that is, as a normal and routine use, without requiring any additional permitting or review by the Town.
In the new zoning, that’s embodied in a new “permitted use” along Maple, upper story residential. Anything above the ground floor can be apartments, condos, or other residences. It’s “by-right”. (It’s perMITted, not PERmitted.)
The three new commercial zones along Maple — East, West, and Center — all allow that as a permitted use. As does Church Street. That’s also a conditional use of the property on which the Cedar Park shopping center currently sits. And it grandfathers an existing one-off building on a weird little parcel of land on Glyndon avenue that, once upon a time, was a 7-11 sitting in the middle of what is now a residential area, and then became a grandfathered commercially-zoned lot sitting in the middle of a suburban neighborhood.
Under the new zoning: New permitted height
Currently, new buildings along Maple can be 35′ tall to the flat roof, and may in addition have parapets and equipment sticking up above the roof, to some unspecified height.
Under the new zoning, the flat roof can be 42′ above the ground, with the provision that the first floor must be no less than 16′ from floor-to-floor. In addition, parapets and “penthouses” to house roof stairwells or elevators can stick up a further 9′. For part of a three-block stretch in the center of town, those penthouses covering stairwells or elevators are allowed to stick up 12′, as long as they are tucked back away from the edge of the roof. The plausible reason for that is to accommodate rooftop dining.
A critical ambiguity on the number of floors
I think the presumption — but not the letter of the law — is that buildings constructed under the revised code, on Maple, will only be three stories tall. So the presumption here — not not spelled out — is that a typical new building will have a 16′ first floor, and two floors of apartments above that, with 13′ between floor levels, allowing for the desirable taller ceilings.
The one thing we learned from MAC zoning is that any ambiguities in the law were probably left ambiguous on purpose, and that somebody already has plans to exploit that ambiguity. So when the new law doesn’t explicitly limit buildings on Maple to three floors … it’s time to pay attention.
To be clear, the one thing that gives me pause is that the law says the first floor must be 16′ tall, floor-to-floor. It says the flat roof can be no more than 42′ above the existing grade. But it doesn’t say — or I did not see — that the floor, of the first floor, must sit flat on the existing grade.
For example, the retail space at the new Vienna Market building sits below grade. If that space is ever occupied by retail stores, you’ll have to walk down stairs to get to it.
Offhand, I can’t see a barrier to somebody deciding to put up a four-floor apartment building, consisting of three floors of apartments over a 16′ tall garage. And, to keep it legal, while providing space for tall ceilings in the apartments, sinking the floor of the garage maybe 5′ below grade.
Based on my cursory reading of the code, that would seem to be legal. I wonder if that’s the intention of not spelling out a number-of-floors limit? An oversight? Or am I misreading the law?
I surely hope the Town has ruled out four floor buildings of that type, in some fashion. But, this being Vienna, there is no guarantee of that. So I may be living in a fool’s paradise, thinking that this caps buildings at three floors. The law doesn’t say that exactly, and any discussion by Town Council suggesting that the practical limit is three is just that — a suggestion. If it’s not in the law, then it isn’t the law. If the first floor can be sunk significantly below grade, and still be legally termed the first floor, then the law as written does not rule out four-floor buildings.
Otherwise, without sinking the level of the first floor below grade, it does not appear feasible to squeeze in three floors of apartments, between the 16′ first floor, and the 42′ flat roof. If the first floor sits at ground level, three floors squeezed into the remaining (42 – 16 = 26, 26 / 3 =) just 8′ 8″ floor-to-floor. That strikes me as not enough height, but you never know what builders might do.
A short word problem
Suppose that retail space in the Vienna Maple Avenue commercial district rents for about $60 per square foot per year. That seemed to be the going rate, the last time I looked at it, just a few years back. But you can only build your retail establishment on about a third of your commercial lot, because you need the rest of the area for the required car parking.
Suppose that a new apartment in this area rents for about $2.50 per square foot per month (reference). And that you can stack two levels of apartments, by right, over nearly 100% of the area of your lot, and bury the required parking beneath that.
How much rent does the same acre of land produce, as existing commercial-plus-parking-lot space, or as two stories of apartments, over first-floor parking?
As commercial space: 60 ($/sq ft./year) * 33% covered by rentable space * 43,560 (sq ft/acre) = $0.86 million.
As housing: 2.50 ($/sq ft/month) * 12 (months/year) * 2 layers of apartments * 43,560 (sq ft/acre) = $2.6 million.
Yeah, that’s crude, and that’s incomplete, but that’s a reasonable illustration of the likely cash flow per acre, for Maple Avenue commercial property, under those two scenarios.
In a nutshell, as an economist, my expectation is that, as long as they can rent those apartments, new construction in the Maple Avenue commercial district is going to be housing, first and foremost.
Hence the focus of this post.
Summing up.
There’s a lot more to the zoning change. That said, my reading is that most of the egregious stuff under the rescinded MAC zoning has not resurfaced. There’s a maximum building size, the calculation of the required parking spaces is straightforward (and has no overlapping “incentives” that reduced parking requirements under MAC). And so on.
And, to put it as plainly as possible, there just seems to be less bullshit. Nobody is claiming that this new zoning will generate huge new amenities for Vienna citizens, in the form of parks and plazas, as was the case under the now-rescinded MAC zoning. This zoning is, at root, an updating of the existing rules.
For sure, it could have been worse. When I last looked at this issue a few years back, we still had the (then, blessedly now former) Director of Planning and Zoning insisting that the law mandate no less than 100 dwelling units per acre, for any new high-density housing constructed along Maple. Here, by contrast, it still says “small town” a couple of places in the the new code. As under MAC, that phrase has zero import, from a legal standpoint. But it’s a nice gesture.
I think I have to credit outgoing Town Council member Potter for holding the line on density and height of the new buildings. I have the exact quote in some much earlier post, but when this was still under active debate, his response was something along the lines of “I wasn’t elected with a mandate to approve big buildings along Maple Avenue.”
Instead, as this rewrite of the zoning progressed, it seemed to settle into what what it had been billed as: An update of the existing building code. Not a replacement, not a supplement, but an update.
I dislike the fact that it normalizes the addition of high-density housing to the Maple Avenue commercial district. But every time I turn around, it seems like somebody has produced yet another stumpy little condo or apartment block here in NoVA. And to some degree, you can’t fight the trend. The latest being nearby Pan Am shopping center, which is now slated to become 500-odd apartments. Plus some retail. Arguably, that one little patch of land (roughly 0.04 square miles) will eventually house about 10% as many people as the entire Town of Vienna (roughly 4 square miles).
But these are the key points of the new zoning, for me: In the new Maple Avenue, housing above the first floor will be by-right, but the buildings can only be three stories. I hope. That’s in theory, not actually specified explicitly in the law. That, unless the Town Council makes some special one-off exceptions to those rules. That doesn’t seem like a horrible compromise, given this (to me, incomprehensible) desire to add housing directly on congested Maple Avenue.
I live just down the street from the yet-to-be-built 444 Maple Avenue West, in Vienna VA. This was authorized under the now-repealed MAC zoning in the Town of Vienna. In a single decision, the then-Town Council not only authorized the single largest commercial building in Vienna, but effectively doubled the number of people who live in my neighborhood. (The counts above are dwelling units in the original proposal for that building, and houses in the surrounding neighborhood). And at the same time, the Town authorized a four-floor 100+bed assisted living facility a block away.
Basically, with two decisions, they made my part of town a whole lot more crowded. And it’s not as if it the roads around here were not crowded already. Below, for example, is the AM rush hour on Maple, right where that big new apartment building is going to be built.
The decision to approve that big new apartment building in the Maple Avenue commercial area was a wildly unpopular decision. Here are the results from competing on-line petitions that were circulated at that time.
But, because those MAC projects each required a specific vote from Town Council, members of Town Council could be held accountable for making that hugely unpopular call. Almost everyone on Town Council who promoted that building either chose not to run again, or was defeated in the subsequent election.
Where am I going with this?
I would characterize the new zoning as MAC light. There still seems to be a goal of creating high-density housing along Maple. Town Council has simply scaled it back by a bit. And, after passing this new zoning tomorrow, they can wash their hands of it. After this, any conversion of the commercial district to housing will be by-right, and will require no further hands-on action by Town Council.
If I had to take a rough cut at it, housing density in the Maple Avenue commercial area can now be, at most, about two-thirds of what was showing up under MAC. That’s pretty much a direct result of the lower building height. You can only stack two floors of housing on each commercial acre under the new zoning, versus three under the repealed MAC zoning. If it’s true that you can only stack up two floors, under the new law, as written.
So I guess that’s coming ahead. One way or the other, the Town is bound and determined to have “mixed use” buildings along Maple. At least these are smaller than what was allowed under the now-repealed MAC zoning.
Addendum: Can you now build a straight-up apartment building, with no retail space, on Maple Avenue?
I think the answer to that is “yes”. It depends on several phrases that are not defined in the statute.
In terms of using the first floor of a commercial building on Maple Avenue, the new zoning says this:
At least 75% of the ground floor occupiable space shall be used solely for nonresidential uses, which may not include nonresidential functions related to the upper story residential units. The remaining ground floor may be used for non-occupiable residential spaces such as entry lobbies and similar amenities for residents' use.
The term “occupiable” is never defined in the statute. I think it means enclosed, conditioned space suitable for use as either a residential or commercial building interior.
I don’t think “occupiable space” includes parking garages. So, unless some other aspect of the new code prevents it, my take on the new zoning is that two floors of housing, over parking, is an acceptable use of land in the Maple Avenue commercial zone. I could be wrong on that, but I don’t care enough to try to wade through the new code to find out.
By contrast, if you put something other than parking on the first floor — some sort of enclosed, conditioned space — that has to be mostly (75%) commercial space. Which, along Maple, is most commonly retail space. But I don’t see any barrier to simply using the entire first floor for parking, if that’s what seems to maximize the profits from redevelopment.
One way or the other, I’ll be gone before the major impacts from this new zoning are felt. And it’s far too late to change anything about it, anyway. But if I were expecting to be here for a while, I’d expect to see the slow conversion of much of the Maple Avenue commercial district into a Maple Avenue housing district.
I guess, the next time you drive down Maple, honk if that’s what you’d like to see there. Because once the Town makes this zoning change, there’s no going back. So you’d better like the results.
