President’s Ct Demonstrates Need to Change Flawed Processes

To read the Main Article on PRESIDENT'S COURT please go to herndonopinion

To read other first article on this development on Herndon Patch please go to President's Court

A.  INTRODUCTION

It is an opportune time to discuss this and other cases because the advent of the Metro to Herndon in 2018 is likely to significantly increase the pressure to approve high-density residential developments.  It would not be surprising if undeveloped residential lots (some as large as 50,000 sq. ft.) in R-10 and R-15 zoning areas are considered for constructing single family homes or townhouses on 4000-5000 sq. ft. lots in the near future.  Similarly, one can expect builders to buy small groups of relatively low-priced homes and replace them with dense developments.  There are unconfirmed rumors that some developers have already set their eyes on specific areas of the town. Therefore, it is the right time to get an idea of how such developments might be approved.

“EVEN BEFORE THE METRO RAIL COMES TO HERNDON, THE PRESSURE TO APPROVE DENSE DEVELOPMENTS WILL INCREASE SUBSTANTIALLY. THE QUESTION IS, “WILL THE CURRENT AND FUTURE COUNCILS MAKE THE RIGHT DECISIONS?”

PRESIDENT’S COURT is a perfect example for understanding the shortcomings of a process that prevents a Council from making good development decisions. Consider the following: 

• Three very able and well-meaning councilmembers were unable to change the outcome even when they were disturbed by many glaring shortcomings of the proposed development including its high density.[1]

• Several important issues that cropped up four years after the approval of the development by the TC were not even mentioned during the TC meetings in 1997.  Their discussion was also missing from the staff report.

• The consolidation of the three parcels was of enormous benefit to the developer; yet, this benefit was not even mentioned at the public hearing much less evaluated by the council or the staff.

• The Architectural Review Board (ARB), in spite of having strong objections to the design of the proposed development, could not sway any councilmember to change his/her mind during the public hearings.[2] And,

• If the ARB, with its considerable expertise and authority could not affect the final outcome, how can ordinary residents, or even a group of residents influence the thinking of a majority of councilmembers?[3]  

The discussion of this case suggests that the town’s administrative processes need to change substantially if we want to (1) minimize the presence of hodge-podge, and odd developments, (2) experience the maximum possible increase in home prices, (3) enhance the quality of life in the Town, and (4) make Herndon more attractive to new residents. 

B.   PRIMARY SHORTCOMINGS OF THE PROCESS

A part of the problem is the structure of the council’s decision-making process itself.  The council usually has no input before it reviews the staff report, usually a few days before its work session.  And, then, it generally gets only two chances to question the staff – in the work session and in the subsequent public session one week later.  However, during each of those sessions, the TC often has to dispose off a large number of agenda items.  For the 18th February work session, for instance, there were 6 public hearing items, 4 presentations by the staff and/or consultants and finally a few discussion items. 

It would have taken 5 hours to cover the 10 agenda items if each item were to occupy an average of 30 minutes.  But, 30 minutes is not enough time for the staff to make a detailed presentation, and for 7 councilmembers to ask questions, discover the relevant facts, discuss the issues and reach a conclusion.  Each councilmember gets only a few minutes to ask questions before making room for others. If the staff does not provide enough details, it is almost impossible to find the critical assumptions[4], the critical piece of data, and the unvarnished background of the issue.

“THE REVIEW OF A PROPOSED DEVELOPMENT AT THE END OF THE ADMINISTRATIVE PROCESS LEAVES COUNCILMEMBERS LITTLE OR NO TIME TO ASK CRITICAL QUESTIONS AND SUGGEST SIGNIFICANT CHANGES, EVEN IF THEY WANT TO”

In addition, there is the question of reluctance (on the part of many councilmembers) to question the validity of a staff report that is the product of many months of work on the part of many.  In this case, by the time, the TC began to consider the proposal, the staff had a built an impressive case record between May 1996 and February 1997.  The Planning Commission had reviewed the application twice and the ARB once.  The builder had negotiated with the staff from the very beginning of the application.  The staff on its own initiative had made most of the critical decisions.  There is nothing in the record to suggest that the then Mayor Rust had given any direction to the staff.  Even if he had, he probably never got into some of the of nitty-gritty details that materially affected the outcome. 

As soon as the TC began its public review, a rather spirited debate ensued.  Right off the bat, three councilmembers had problems with the proposal.  Carol Bruce, Rick Thoesen and John DeNoyer were not satisfied by the staff’s representations about the density of the development. Perhaps, they should have also kept quiet, made a few crowd pleasing statements, thanked the staff for doing a good job and praised the developer for bringing an excellent development to the Town (as many councilmembers often do).  However, the three chose not do that. 

After considerable discussion, Rick Thoesen, the then Vice Mayor, made a motion to postpone the vote by two weeks. Four of the 7 councilmembers wanted to approve the application that day, but in deference to Rick Thoesen, Mayor Rust agreed to postpone the vote by 2 weeks. What was needed was for the three concerned councilmembers to get together, find pitfalls in the staff’s analysis, and find some common ground for action at the next meeting. However, that did not seem to have happened.  There is usually no time for that. Ultimately everyone caved in.

They could have also made the motion to send the application back to the staff and PC, but the other four councilmembers would not have approved this step (especially when there was groundswell of public opinion against the proposal). 

The following two sections discuss (1) issues that should have been brought up and discussed during the public hearing, but weren’t and (2) issues that were brought up but were not addressed satisfactorily.

C.   ISSUES THAT SHOULD HAVE BEEN ADDRESSED DURING THE PUBLIC HEARINGS, BUT WEREN’T  

During the TC public sessions in 1997, nobody could have possibly represented the future residents.  Had they been there, they might have protested and demanded at least the following two changes to the design of the development. 

1.    Removal of the Exercise Trail

In 2001, a group of first residents became aware of (the already approved) exercise trail and of its potential to violate their sense of privacy and safety.  Even though the exercise trail had been located adjacent to the rear yards of about 12 homes, none of the councilmembers had raised the privacy and safety of the future residents in 1997.  None of them anticipated that the residents (of the 12 homes) might find it “insidious” to discover strangers walking and exercising behind their homes. They had to turn to Tom Rust to excise the trail from the development plan. 

“THE QUESTION WE MUST ASK IS, “WHY WEREN’T ISSUES THAT HAD THE POTENTIAL TO AFFECT THE QUALITY OF LIFE OF FUTURE RESIDENTS RAISED BY THE COUNCILMEMBERS BEFORE THE APPROVAL OF THE APPLICATION?”

2.   Approval of Decks in the Backyards

A few months later in 2002, the town staff had rejected the applications of several residents to build decks in their backyards, because “the decks would violate the set back requirements of the code.”  Luckily, Rick Thoesen came to know about the problem while campaigning for Mayor in 2002.  Shortly thereafter, the staff reversed itself and approved all previously rejected applications.  The question is why this issue did not turn up either in the staff report or during the public hearing.

3.    Visitors Parking

The availability of parking spaces has turned out to be a long-term problem.  During the TC review, however, no councilmember asked any question or expressed any concern.  Even though several of them had served on the Planning Commission or the Town Council for many years, they seemed unaware of the visitors’ parking needs in such developments.  They also did not seem to realize that one of the proffers (the conformance of the site plan to be in “substantial conformity to the GDP) offered by the developer would enable him to remove almost all of the proposed street parking.[5] 

It is obvious that neither the staff nor the council had any inkling of the problems to come when the development was approved in 1997. 

D.  ISSUES THAT THE COUNCIL COULD NOT ADDRESS

SATISFACTORILY DURING THE 1997 PUBLIC HEARINGS

The following sections describe how the TC addressed or did not address the issues that arose during the public hearing review of this rezoning case.

1.    Density of the Development

During the February 18th work session, the TC had expressed its concern about the (high) density of the development.  They had the sense that the proposed density was much higher than the density of the surrounding neighborhoods.  They seemed to know that the average lot size was much smaller than that in the R-10 district and there was extensive discussion of the “wall” effect of placing homes too close to each other.  In spite of having one week to prepare and ask more questions, the council-members were not prepared to ask even basic questions; such as,

• Why had the staff not calculated the actual gross density of the Chandon Wood and Downs neighborhoods?

• Why was the staff using the concept of theoretical maximum density especially when such a term did not even exist in the code?

“THE STAFF CREATED A NEW DEFINITION OF DENSITY TO JUSTIFY THE APPROVAL OF A LARGER NUMBER OF RESIDENTIAL UNITS. NONE OF THE COUNCILMEMBERS DISCOVERED THIS CRITICAL CHANGE.”

• Why was the staff comparing theoretical maximum density with gross density?  Was that not like comparing apples and oranges?

• Why had the staff not compared the actual gross density of adjacent neighborhoods with the actual gross density of the proposed development?

Councilmember Bruce stated that “… (when) she compares this property to the surrounding area” … “…she believes the density is too high.”  Mr. DeNoyer stated rather sarcastically, “…it appears the creativity for this particular proposal is to have as many homes as possible on one piece of land.”  Vice Mayor Thoesen expressed his concerns about the density in a letter to the applicant’s attorney by stating, “I don’t care what material the façade is constructed of, overcrowded density will surely have an aesthetic impact to … the surrounding neighborhoods.”  They seemed genuinely concerned, but did not raise questions such as those given above.  As long as they were unable to do that, they couldn’t challenge the staff, the applicant, or his attorney.

Others councilmembers did not seem to be particularly concerned about density. Mayor Rust, who had the background to question the validity of the staff’s assumptions, chose to act more or less like a referee. After hearing comments from the public, the applicant, and other councilmembers, Mayor Rust stated that the issue appears to be density.  He asked the council to consider whether the increase in density was advantageous to the Town.  Then, he tilted his hand by strongly summarizing the proffers and stating that these are some of the guarantees that the Town would not get if the property were developed under the existing zoning. (The APPENDIX below suggests that Mr. Rust was not justified in making this assertion, but none of the councilmembers contested his declaration. [6])

“NONE OF THE COUNCILMEMBERS CHALLENGED THE MAYOR WHEN HE MISSTATED THE PROBLEM AT HAND”

Bill Tirrell opined that there was not much difference between the proposed 27 units and the 24 units theoretically possible under R-10 zoning. He (and probably other councilmembers) seemed to be unaware that, practically speaking, it was not possible to build even 16 houses under the R-10 zoning.  The staff report said that as much by stating, “ the requested R-GC zoning will permit approximately two times as many dwellings than the current R-10 zoning would allow with the property’s current configuration.”   In any case, Mr. Tirrell did not seem to understand that an extra 15,000 sq. ft. of space could make a big difference in enhancing the development.  Mr. Husch did not express any thoughts.  Mr. Downer bought into Tom Rust’s assertion that the guarantees proffered by the developer may not be available under the existing zoning.  He offered no independent support for his decision. The comments by Tirrell, Downer and Rust suggested that a majority of the Council was ready to approve the project without any serious discussion of the density or any other meritorious issues.

2.   The “Wall” Effect

The developer had planned that all homes would have their entrances from a private street (Senate Ct).  This meant that Town residents and visitors would mainly see the back of the dwelling units.  The chairman of the ARB raised his objection by stating that, “the development appears to turn its back on the neighborhood and that while the developer is proposing a “decorative fence”, it will still be the rear of the houses facing Van Buren Street.  A January 30, 1997 memo by the staff states that several members of the ARB had suggested that, “the development could potentially take the appearance of a walled city.”  The memo also expressed the ARB’s concern that, “the monetary value of the homes will be adversely affected by the “overcrowding of the structures and the uninterrupted and monotonous rhythm of houses and their side yards.” During the public hearing, the chairman of the ARB asked that something should be considered to “limit the amount of narrow land area between each house”.

“HISTORY TELLS US THAT THE ARCHITECTURAL REVIEW BOARD WAS TOTALLY JUSTIFIED IN CRITICIZING THE PROPOSED DEVELOPMENT AND THAT THE COUNCIL WAS NEGLIGENT IN NOT PAYING FULL ATTENTION TO THE BOARD’S CONCERNS”

None of the councilmembers reacted to the ARB’s criticism, probably because they did not know what to make of it.  How could they possibly go against the staff that had already rejected the ARB’s input?  The staff indicated that the ARB could possibly take a look at the orientation of a few homes at the site-plan approval stage.  Ultimately no meaningful action was taken to mitigate the “wall” effect and it is now likely to stay in place for 50, 100, or even 200 years?  Once the damage is done, it cannot be mitigated easily. 

3.   Dedicated, Active Recreation Area and Open Space

During the TC work session of the 18th, the council asked the staff to consider taking the exercise trail out.  They did not see the need for an exercise trail due to the presence of the Haley Smith Park across the street. However, no discussion of the need to meet the spirit of RGC zoning, that is, to provide a meaningful common recreation area took place during the work or the public session. Neither did the staff volunteer that the code contemplated the use of several suitable alternatives for creating community recreation facilities.  The councilmembers seemed much more interested in receiving higher cash proffers for town-provided off-site recreation (such as the Haley Smith Park) than in meeting the requirements of RGC zoning in good faith.

The ARB in its initial review had expressed particular concern over the dwellings on extended drives.  It had suggested that these structures “are awkwardly place and appear squeezed into the street façade…” and “…these additional houses destroy any potential views of the community’s open space, which has been relegated to the periphery of the site.”  The council appeared to be oblivious to this concern on the part of the ARB.  As a result, none of the councilmembers raised any question with respect to this issue.

4.   Stormwater Pond

Once the developer became aware that the site would receive stormwater from the Chandon Woods area and might exacerbate the already poor drainage at the site, he substantially changed the layout of the houses in the development and proposed to build a small pond to manage the peak flows.

Councilmember DeNoyer led the charge to ensure that storm-water management issues either had been taken care of or would be taken care of at the site plan approval stage.  However, even he did not raise enough questions about the adequacy of the size of the pond.  The staff and other councilmembers did not really want to discuss the size of the pond, because they maintained that the stormwater calculations are done at the site plan stage.  But if any stormwater management method has the potential to affect the core development at the property it should be discussed at the rezoning stage.  In this case, it so happens that the pond now occupies about 8,000 sq. ft., and butts against the rear lot lines of three homes.  Had the required area been a little larger, the builder would have had to revise the GDP substantially.  Most councilmembers were apparently not aware of this possibility.

E.   SUMMARY

What the discussion shows is that, issue after issue, councilmembers, individually and as a group, cannot easily challenge the staff even if its report does not make sense, or when the facts do not fit together, or the analysis is plainly wrong.  They generally have neither the time nor the expertise to do so successfully.  A few minutes of questioning in the work and public sessions cannot possibly help them to understand the intricacies of the staff’s analysis unless they have strong prior experience in the particular issue at hand. In this case, three relatively strong

“THIS CASE SUGGESTS THAT THE ABSENCE OF OVERSIGHT BY THE COUNCIL IN THE EARLY STAGES OF THE STAFF’S REVIEW OF A REZONING APPLICATION SHORTCHANGES OUR CITIZENS”

councilmembers knew that something was wrong with respect to density, but could not find what was wrong much less lobby others to correct it. What made their task difficult is that other councilmembers did not seem to understand the significance of the correct analysis for the long-run benefit of the town or of the future residents of the development.

Further, none of the 7 councilmembers seems to have done enough preparation to know that the staff report was missing items that were going to be important to future residents.  These items included adequacy of visitor parking, the need for dedicated active recreation areas, and approval of decks. In spite of many years of experience on the council, the Planning Commission or other Boards in the town, they did not ask any questions. This suggests that if the staff fails to address important issues, the general public can never be certain that the Town Council would catch the omissions and mistakes and make the corrections.

_____________________________________________________

APPENDIX -- Brief Discussion of the Value of Guarantees Proffered by the Builder

After hearing comments from the public, applicant, and other councilmembers, Mayor Rust stated that the issue appears to be density. He asked the council to consider whether the increase in density was advantageous to the Town.  Then, he summarized the proffers and stated that these are some of the guarantees that the Town would not get if the property were developed under the existing zoning. Lets take a look a his summary:

1.    Guarantee 2,800 sq. ft. minimum house plus garage

It is not clear why a house of this size brings any special advantage to a town that already contained large tracks of homes with sizes greater than 2,800 sq. ft. in many zoning districts including the R-10 districts.  As it turns out, the developer used this proffer to increase the size of the dwelling units (during the site plan approval stage), reduce the distance between them, remove the on-street parking and lessened the width of the main street in the development by up to 15’.  All along he wanted to make them bigger.  Regardless, under R-10 zoning, lots would have been larger; therefore, it would have been even easier to provide this guarantee.

2.   Guarantee The ARB Review During the Site Plan Approval

It looks like Mayor Rust was claiming that the government’s unilateral power was forcing the developer to proffer an additional review.  The government would have similar power even under R-10 zoning. It still would have to agree to allow consolidation of the three parcels, which, as this report suggests, would have accrued a benefit of at least $1 million to the builder.  Therefore, if necessary, a builder would have chosen to proffer the review even under R-10 zoning.

3.   50 Percent Brick

Town residents, who spoke at the two public hearings, were mainly interested in the quality of the views they would have from the Van Buren street.  That meant the following: (a) no decks in the back, (b) larger separations between homes, (c) views of the inside of the development, (4) high quality fence along Van Buren Street and (5) no Vinyl siding.  As far as the town residents are concerned, vinyl siding dominates their view from Van Buren and other streets. The view under R-10 might have been even better due to a better orientation of the homes.  Thus, this proffer was not particularly advantageous to the town.

Mayor Rust mentioned other proffers including land for street dedication, funds for recreational facilities, and a traffic-actuated traffic light at the corner of Van Buren Street and Herndon Pkwy.  There is no reason to believe that these proffers would not have been from the developer under the R-10 zoning.  The project would not be possible without dedication of the land.  And, contribution for recreational facilities and traffic actuated traffic light were a miniscule portion of the increase in value of the land due the consolidation of the three parcels.[7]

[1] None of the councilmembers apparently had anything personal to gain from its approval or disapproval, it was free from normal politics, and, as far as we can tell, it was free from any direct conflicts of interest. Yet, the Town Council made less than satisfactory decisions.  In contrast, the development of the town’s Shared Parking Policy was notable for (1) absence of questions from the councilmembers, (2) potential conflicts of interests, (3) masking the true intent of the program, and (4) potential effects of politics.

[2] The ARB had made its recommendations several weeks before the TC hearings.  Unfortunately, the recommendations did not conform to the planning staff’s ideas.  The chairman of the ARB, as a last ditch effort to improve the design, appeared before the Council to present its objections.

[3] Many believe that unless a large number of people show up and oppose a proposal, the outcome of a public hearing is a foregone conclusion and that participation in public hearings is a fruitless exercise.

[4] For instance, in this case, it took me several exasperating days to figure out that the staff had incorrectly compared the gross density of the proposed development with the maximum theoretical density of R-10 districts and that the staff had not calculated the actual gross density of the adjacent neighborhoods.  One does not expect to find such mistakes in the professional world.  Only in academic world does one use such tricks to fool others or to set up difficult riddles. The need to find the mistake arose because the staff kept maintaining that the density of the proposed RCG zoning (in which 31 houses were packed together) was not that different than that of the adjacent R-10 zoned neighborhoods.  Well, almost everyone, who had reviewed the GDP and seen the R-10 districts, knew that this assertion by the staff was not correct.  As the following discussion shows, only three of the 7 councilmembers sensed something was wrong, and “kicked a little dust”, but could not solve the puzzle in the time available.  As a result, the Town will bear the consequences for the next 100 or 200 years.

Similarly, while reviewing the Metro Area Plan last year, it took two people several days to discover one critical “mistake”.  The consultant had underestimated the traffic generated by the proposed development by a factor of eight.  The need to find the mistake arose because the analysis did not make any sense.  The staff had projected that the proposed development, packed in about 110 acres, would double the population of the Town by 2035, but would cause only relatively minor traffic impacts.  Well, the staff was off by a factor of eight.   After being publicly embarrassed, it reduced the plan area to 39 acres.  Still, there were gaping holes in the analysis and lots of questions had not been answered.

[5] Note that Mr. DeNoyer had raised several issues with respect to the term, “substantial conformity”, but did not raise any concerns about adequacy of visitors parking.  In all fairness to Mr. DeNoyer, it should be stated that one councilmember couldn’t possibly have addressed all aspects of this complex issue all by himself.

[6] He did not frame the choice accurately.  His statement assumes that the choice was between the proposed development and the existing R-10 zoning.  But, there was another choice - the choice between building 27 units as proposed and 22 units (or some other smaller number, say 24).  Thus, the question would have been, “Would the same guarantees be available if the number of units were to be reduced to, say, 22?”  Our analysis of the guarantees proffered by the developer (minimum 2,800 sq. ft. house, 50% brick, ARB review etc.) and of the value gained by consolidating the three lots and subdividing them into small lots suggests that the developer would have been foolish to walk away from a requirement to build only 22 units.  The guarantees would have available even if the property had been developed under R-10 zoning.  There was so much to be gained just by consolidating the lots.  No councilmember challenged Tom Rust’s framing of the issue.

[7] Based on Fairfax County assessment records, the 27 properties under RGC zoning had a combined land value of $2.16 million in 2001.  Under the R-10 zoning, the developed and subdivided land would have been valued at about $1.5 million.  And, the value of unassembled and unimproved land would have been less than $500,000 in 2001.  Therefore, the developer stood to realize a net gain of between $1 million and $1.6 million just by assembling the lots. He would earn even more profits by constructing and selling the units.   He would not have walked away if the number of units had been reduced to 22 or so or even if he had to develop the property under R-10 zoning.