Author: chogan@directresearch.com

Post #321: Why doesn’t Sunrise sue the Town now?

At this point, I think it’s fairly well established that, to a significant degree, the Town of Vienna just kind of makes-it-up-as-they-go-along under MAC zoning.  I think, for people who read this website, I don’t need to list the many examples of that.  A quick reminder:  the 100-day-rule that nobody else in Virginia obeys, the four-floor limit that maybe means five floors, the mezzanine rules that don’t apply to “commercial mezzanines”, the mandatory “voluntary” proffer to bury the power lines, changing the rules to make protest petitions harder, and so on.

I’ll just note the most recent one:  Town staff simply gave a developer 4′ of extra room, more-or-less directly from the public street, by proposing to narrow Wade Hampton by 4′ as part of the redevelopment (Post #312).  Now the Town is in the position of maybe-kinda-sorta negotiating to have the developer give that back — after the Town has approved the rezoning.  Because, yeah, sure, that’s a well-specified and orderly process if ever I saw one.  And an example of the brilliant bargaining tactics that have been a hallmark of the Town’s approach to MAC zoning.

But here’s the one that has me puzzled now:  Why hasn’t Sunrise sued the Town?

Here’s the background.  In the 5/1/2019 involving Town Council, the Town Attorney said that if an application met all the required standards under MAC, the Town could not turn it down (Post #261).  If they did, they’d risk being sued for making an “arbitrary and capricious” decision.  This was in a public meeting, mind you.  In essence, the Town’s lawyer sets the Town’s legal position on this, which amounts to a Town of Vienna legal position of “please sue us if we turn you down”. 

(For this next part, I’m not going to provide links to my prior write-ups documenting these facts.  You’ll just have to take it as a given that these things all happened, and you can search this website to find them if you are sufficiently motivated to do so.)

Now, for Sunrise:  At the suggestion and direction of the Planning Commission, Sunrise eliminated retail space.  This was largely to improve the amount of parking available for the assisted living facility.  Planning Commission Chairman Gelb did some shoe-leather research and concluded (based on a nearby Sunrise) that the parking level was probably adequate, though not ample.  Town staff presented charts showing that the proposed parking levels were within the norms required by adjacent jurisdictions.

Sunrise then provided proffer after proffer to improve the parking situation further.  They would have valet parking available at all times to add more usable parking space.  They’d have a $20,000 annual fund to subsidize transit use by employees.  They’d have a transit demand management program.  They’d have employees park off-site and shuttle to the facility.  They had additional usable parking spaces that were not counted by Vienna but that would be used by employees.  They stated (correctly, I believe) that, given the site requirements, the Town was unlikely ever to find another use that required less parking than assisted living does.  They would bar residents from having cars.  I believe they stated their willingness to comply with any further requirements the Town might suggest regarding parking.

It was a good-faith effort, and then some.  And by the end of it, by my calculation, they were providing more parking than any of the surrounding jurisdictions requires for a facility of this type.  Far more than Town staff suggested was adequate.  I even went so far as to suggest that Sunrise could provide much-needed public parking in that structure by eliminating the last vestige of retail space (Post #289).

But the Town turned them down.  Near as I can recall, I heard two objections:  Inadequate parking and inadequate retail space.  That was the point at which I described working with the Town as akin to dealing with someone with severe short-term memory problems (Post #301, search for “irrational and psychotic Town government“).  I.e., it was the Town that suggested they eliminate retail space to favor parking in the first place.

So, “arbitrary and capricious”?  Strikes me that way.  But while Virginia is a strong property-rights state, it also has a strong tradition of deferring to the decisions made by local legislatures.  So it’s not clear that it would be worth suing.

In any case, I was under the vague impression that they only had 30 days or so to act on a rezoning.  After that, it’s final.  Based on this last Town Council meeting, my (again vague) understanding is that the Town pretends that the rezoning occurs when the Town Council votes on it.  So … we’re pretty much at the deadline for Sunrise to file a lawsuit, I think.  I sure haven’t heard that Sunrise has done or is even contemplating any such thing.

I just can’t quite fathom why.  Was the Town Attorney wrong, as discussed in Post #263?  Does Sunrise not consider it worthwhile to protest that zoning decision?  Is it their corporate policy not to sue?  Do they fear retribution from the Town (i.e., slow-walking any further permits and such)?  Do they consider the Town’s decision justified?

I guess we’ll never know.  Going forward, I guess the only important issue is whether or not the Town Attorney was correct in his statement that the Town cannot turn down MAC applications that meet all legal requirements.  If that’s true, then MAC has become just another form of by-right development along Maple Avenue.   I’m pretty sure it was not presented to Vienna citizens as such, and I’d say it’s a fair bet that its creators did not know they were doing that when they created it.

Post #320: The 7/16/2019 Town Council/Planning Commission joint meeting

This was a joint meeting of Town Council and Planning Commission to consider a motion to rescind the rezoning of 380 Maple West (37 condos plus retail, Wade Hampton and Maple).

The meeting lasted nearly six hours.  I went there, but could not stomach it, so I left before it started.  My wife lasted until about 1 AM.   I recorded the Town’s live stream, but even now I don’t have the stomach to watch the entire thing.

In all that time, near as I can tell, they never did make or consider a motion to rescind the zoning.

Instead, the meeting ended with a vague direction for Town Staff to negotiate with the builder about maybe possibly not narrowing Wade Hampton to 32 feet (Post #301), and perhaps keeping the street parking that is there (Post #238r).

All told, what can I say in response to that?  I am reminded of a quote from Tom Lehrer:  “Political satire became obsolete when Henry Kissinger was awarded the Nobel Peace Prize.”

And, as with the bait-and-switch with the Marco Polo proposal, there was not even a hint that the Town would ask how this happened in the first place.  How is it that Town staff unilaterally decided to narrow the road, to the benefit of a developer.  Asking such questions is apparently — vulgar or something.  It’s just not done in the Town of Vienna.  Do Town staff retain the power to do those sorts of things in the future?  Did they go rogue?  Did the Mayor order it?  Did they just consider it business as usual?  Was the Town Manager aware of these actions at the time they occurred?  Guess we’ll never find out.

The two newcomers I supported in the last election put in a less-than-stellar performance.  Literally phoned it in, in one case.  Clearly not as prepared as possible in the other.  The net effect was arguably a lack of effectiveness in the meeting.  I retain an abiding faith that they will get the lay of the land and that if there is a next time, they’ll be more effective next time.

At any rate, between 444 Maple West and this one, the Town has more-or-less doubled the number of people living in my neighborhood.  The most stress-free way for all of them to get to I-66 and Metro in the morning will be by coming down my street.  (Which is, by the way, a whopping 20′ wide.  But who’s counting.)  This graphic is a little outdated (the 40 should now be 37), but it gives you the gist of what’s happened so far.  And they are just getting started.

 

Ah, well, what’s a little collateral damage, right?

So, crazily enough, I moved within the Town of Vienna, a dozen years ago, so I could have a house in a quiet residential district within easy walking distance of Maple.  Paid a hefty premium to do that.  In hindsight, that was not one of my smarter investments.

Post #319: $60/sq ft/yr.

After making a few informal inquiries, it seems that $60/square foot/year is the new normal rate for prime retail space on Maple Avenue.  I’ve stumbled across that figure in several prior posts (search for it if you want).  So I thought I might comment on that a bit, in the context of what makes Maple Avenue retail property worth that.

The point of this posting is that a lot of what makes Maple Avenue tick, right now, runs contrary to a lot of what people seem to claim about Maple Avenue.  And run contrary to some of the stated goals of the current MAC statute. Continue reading Post #319: $60/sq ft/yr.

Post #318: Motion to rescind

Tomorrow (7/15/2019) the Town Council and Planning Commission will hold a joint hearing on a motion to rescind the approval of 380 Maple West (37 condos plus retail, Wade Hampton and Maple).

I have discussed the background for this in several posts but my best explanation for how we got here is Post #309.

I have just three things to add at this point.

1:  It’s just theater.

Having sat through dozens of such meetings over the past year, and having seen the Town Council approve 444 Maple West despite massive public opposition, I’m pretty sure that the “public hearing” portion of this meeting is purely for show.   It’s a legal requirement, so they have to do it.  But Town Council members already know how they will vote on this, and nothing that the public has to say will change those positions one bit.

By contrast, I have seen the Planning Commission modify its position in response to public comment.  But Town Council?  On this issue?  Nah.  Not gonna happen.

So, by all means, show up and speak.  Be heard.  Sit through the hours (?) of discussion.  Listen to our elected representatives give their speeches.  But realize that, absent the legal requirements, they could have gotten this piece of business over with in about five minutes.   Call the roll, vote, and leave.

Why am I so sanguine about that?  Because …

2:  The game is rigged.

In order to approve 380 West, in the presence of a protest petition, at least five Town Council members had to vote in favor of it.  (It used to be six, but Town Council changed that after the initial defeat of the Marco Polo proposal, one of the many times they doubled-down on MAC zoning (Post #227).

So, logically, anything under five “yes” votes for 380 — i.e., anything over two votes to rescind 380 — ought to result in rescinding the decision,.  They are revisiting a decision that required five “yes” votes.  Anything under five, now, means that the original motion would not have passed.

Under that interpretation (undoing the original decision), three or move voting to rescind would result in rescinding the original decision.  Three or more would have been enough to block the original approval.  Logically, three should be adequate to rescind the approval.

But wait, maybe that’s not fair.  Maybe this needs to be treated like any other motion before Town Council, and should require a majority of Town Council members voting in favor of it.

Under that interpretation (treat as any other motion), four or more voting to rescind would result in rescinding the original decision.  That’s a simple majority of the Town Council, that’s the way business is normally conducted.  And that’s consistent with why this is being revisited in the first place — three-quarters of votes cast in the May election were for anti-MAC candidates, and those now account for a majority of the members of the Town Council.

Under either of those interpretations, the motion to rescind would pass.  Which is precisely why the Mayor and Town Attorney aren’t going to do either of those things.   The rumor I have heard is that they are going to require a super-majority of “yes” votes in order to pass the motion to rescind the 380 approval. 

Because …. ?

Because they win, in that case.  Under that interpretation, five people would have to vote to rescind the decision.  Absent a miracle, that will not occur, as Council members DiRocco, Colbert, and Noble can be counted to vote against rescinding the 380 approval.   I’m sure there will be some legalese solemly spoken in order to bless this decision.  But the reality of it is, the remaining pro-MAC Town Council members would not win in any sort of fair fight.  But only idiots opt for a fair fight when they control the rules.  So they have taken the last two weeks to gin up a rationale that lets them win.

Which merely underscores that ….

3:  We need to vote the three remaining pro-MAC Town Council members out of office next year.  (Or, at the least, give it a good try).

Up to now, when challenged, the pro-MAC Town Council and Town employees have simply doubled-down on every objectionable aspect of MAC zoning (Post #227).  And this next meeting will NOT be the last of that of that doubling-down strategy that we have seen so far.

Why?

Because this latest episode shows that if you control the rules, and have Town staff working for you, it doesn’t really much matter that you are in the minority.  It doesn’t much matter that the most recent election should have sent a fairly strong signal about what the majority of Vienna citizens want, with three-quarters of votes case for anti-MAC candidates.

If you hold the reins of power, you can use them to ignore the results of the last election, in the hope that the next election will turn things around for you.  Given that attitude, the only option for people who oppose the current MAC setup is to prevent that from happening.  The only option is to try to vote the rest of them out, if we can.

I don’t say that lightly.  I’m pretty much sick of this issue.  But there hasn’t been the slightest indication that the pro-MAC forces are willing to consider material changes to the existing law.  I.e., Almost nobody wants to get rid of MAC entirely, but a large fraction of the population appears to want smaller buildings and more green space (as outlined in this post based on a survey of Vienna residents).  But all we have seen so far is more sleight-of-hand, such as the offer to replace the useless 15% “open space” requirement with what would in all likelihood be an equally useless 10% “gathering space” requirement.

In summary, for those who have been following this issue closely, it’s absolutely no surprise that those in power would bend the rules in their favor.  Recall that after the original Marco Polo proposal was turned down, those in power changed the voting rules to try to ensure that would not happen again.  This latest twist is just more of the same.

 

Post #317: D-I-Y alerts for Town business relevant to you.

I have finally figured out a way to set up automatic notifications that should send me an email when some forthcoming Town meeting contains an item of interest to me.  It’s not perfect, but it’s the best I’ve been able to figure out so far.  I believe that few people realize this can be done.   So I thought I’d share, just in case you would care to do the same.

The problem.

Suppose that you have a particular interest in (say) trash pickup in the Town of Vienna.  And that, any time this is discussed in a public meeting, you’d like the Town to notify you in advance, e.g., send you an email a few days ahead of the meeting.

Nothing on the Town of Vienna website will allow you to do that.  Or, at least, nothing that I have ever found.  The Town has an Alerts system, but that’s for things like tornadoes and street closings and such.  The Town website would allow you to set up an RSS feed for the Town Calendar, but if that worked, that would notify you every time the calendar changed for any reason.  (And I have my doubts that it does work, based on the community connections section of the Town’s RSS feed page.)

Near as I can tell, before I figured out my current approach, the only way a citizen could be aware of what the Town will discuss is to wait for the Town to post the meeting agenda, then go to the Town website and look at it.

The (partial) solution.

Rely on the Legistar (Granicus) website to do that.  The Town posts meeting notices and agendas on the Legistar website for its four main governing bodies:  Town Council, Planning Commission, Board of Architectural Review, Board of Zoning Appeals.

Legistar allows you easily to set up an account, and then set up alerts based on any set of keywords or phrases that you wish.  Either click the “sign in” link in the upper right corner of that page cited above, or click the “Alerts” link.

Set up any number of alerts based on more or less standard Boolean phrases using AND and OR and NOT.  (So, if I wanted to hear about trash pickup or recycling, I would ask for … “trash pickup” OR recycling.  Search appears to be case-insensitive.  You cannot search for special characters.)

If you click for daily alerts, in theory, the Legistar system will check daily for any new items posted on the Vienna page that mention those words or phrases, and email you if they find a new one.  You can add CC email addresses if you have friends who want to piggyback on your alerts.

Because the Town posts the agendas and meeting details only a few days before each meeting, this should give you a timely reminder of a meeting you would like to attend.

Limitations and caveats.

  1.  You have to trust that the Granicus/Legistar system will work.  They serve thousands of local governments, so it’s a fair bet that it works.
  2. Only those four boards (TC, PC, BAR, BZA) are posted to Granicus/Legistar.
  3. Other important commissions in Vienna (e.g., Transportation Safety Commission) are NOT posted to this website.  The only way to know what those other commissions are doing remains to check the Town calendar (on the Town’s website) to see if they have posted a new meeting agenda.
  4. The search function appears to check the title of each listed agenda item, but does not search through the contents of the attached documents.

Still, this is better than nothing.  And it’s the best method that I have found so far.

 

Post #316: MAC versus Mosaic, retail density is an issue

In Post #313, I came to the surprising conclusion that Maple Avenue, at Glyndon, is more “retail dense” than the Mosaic district.  You have more retail square footage, and more establishments, within a quarter-mile walk of that intersection, than are in the Mosaic district.  Although, obviously, the mix of establishments in Vienna is radically different from that in Mosaic..

This raises another question:  How’s the “retail density” of the new MAC mixed-use projects working out?  These are all at the west end of Maple.  If you took the entire western half-mile of Maple (so, a quarter-mile walk in each direction) and built both sides of the road up at the observed MAC density (so, one mile of Maple Avenue frontage), would it equal equal the 350,000 square feet of retail found in the Mosaic District?  Or even the nearly 440,000 square feet of retail at the “Glyndon Shopping District” on Maple?
Continue reading Post #316: MAC versus Mosaic, retail density is an issue

Post #313: Maple versus Mosaic, retail density is not the issue

Post #302 made the case that you can’t expect the entire Maple Avenue corridor to become one big “vibrant, pedestrian-oriented” shopping district.  Any such district would have to be smaller than the length of Maple.  Post #310 pointed out that the Town has no plan for any area smaller than all of Maple.

In this post, I’m going to start to characterize what does and doesn’t appear to work, in this immediate area, in terms of getting that “vibrant, pedestrian-oriented” shopping experience.  I focus on the Mosaic District, then turn to Maple.

And there I got a surprise.  Define “retail density” as the number of retail establishments within a quarter-mile walk of some point.  I figured that Maple Avenue, with those old-fashioned shopping centers, could not possibly be as “retail dense” as Mosaic.  I figured, maybe the reason you don’t see people walking to the shops on Maple is that they are far too spread out.

But that’s wrong.  The center of Mosaic (Strawberry Lane Park/Target) has 81 retail establishments within a quarter-mile walk.  Mosaic claims 350,00 square feet of retail space.  I assumed the sprawling Maple Avenue, with its old-fashioned shopping centers, would have nowhere near that density.  Dead wrong.  The corner of Maple and Glyndon has 107 retail establishments within that same quarter-mile walking distance.   Using Fairfax County tax maps, I calculate just under 440,000 square feet of retail space in that area.

Within a quarter-mile walking distance of the intersection of Maple and Glyndon, there is more total retail space and there are more total establishments than within the Mosaic district.

Continue reading Post #313: Maple versus Mosaic, retail density is not the issue

Post #315: The 7/1/2019 Town Council meeting

In a nutshell:  I’m not quite sure what went on with regard to the motion to rescind the approval of 380 Maple West (Post #309).  About 40 minutes into the meeting, Town Council recessed into a closed session, in order to consult with the Town Attorney.  That was supposed to last 10 to 15 minutes, but in fact took well over an hour.  There was lengthy discussion of 380 after they came out of that closed session.  I believe the upshot of all of that is that the motion to rescind the 380 Maple West approval was withdrawn — for now.  Instead, they will hold a separate public hearing on July 15, to consider that motion to rescind, after publishing notification of their intent to rescind that rezoning.This will be a joint public hearing by Town Council and Planning Commission.  The vote for another public hearing was 5-2, with DiRocco and Colbert voting against. Continue reading Post #315: The 7/1/2019 Town Council meeting

Post #314: Public meetings regarding MAC, week of 7/1/2019.

There is only one public meeting this week relevant to MAC zoning.

Today, 7/1/2019, at 8 PM, the Town Council will meet.  The final item on this evening’s agenda is consideration of a motion to rescind approval of 380 Maple West (37 condos plus retail, Maple and Wade Hampton).

The meeting materials for the motion to rescind the decision are posted here:
https://vienna-va.legistar.com/LegislationDetail.aspx?ID=3998325&GUID=6AFD6CFF-387C-4BF5-BB19-48AA30CEFC78&Options=&Search=

The Town reserves the right to change or cancel meetings on short notice, so check the Town’s general calendar before you go, at this URL:
https://www.viennava.gov/Calendar.aspx?NID=1&FID=220

You can see my writeup of this issue in Post #309.