PRESIDENT'S COURT - An Example of How Our Government Makes Flawed Development Decisions

A LONG SUMMARY, AND QUESTIONS FOR MOVING FORWARD

President’s Court is a relatively upscale development located at the corner of Herndon Parkway and Van Buren Street.  

The proposed development consisted of consolidating three adjoining parcels of land and rezoning it from R-10 to RGC (garden court) district.  

It was a non-partisan case.  Neither politics nor conflicts of interests seemed to have influenced the decisions of the town staff or councilmembers, yet the outcome turned out to be quite unsatisfactory.

This review, based on an in-depth examination of the rezoning and site-plan files, minutes of the town council meetings, and interviews with the residents, answers the question, “how did the town approve a development with so many defects?”  

It focuses on two sets of decisions – those taken by the staff during the 10 months of the rezoning application and those taken by the Town Council in February and March of 1997.  It provides an excellent insight into why things often do not work in the best interest of the Town residents, even today.

Unexpected Litany of Problems

I came across the planning and zoning problems in this neighborhood rather accidentally. Last April during the election campaign, two homeowners beaconed me to talk about the “parking problem” in their neighborhood. The curbsides of the only street in the development are painted yellow, because the street is too narrow to permit parking.  

The eleven parking spaces, inconveniently located at the two ends of the street, are not sufficient for their needs. Exasperation runs strong when their guests have to park in the adjacent neighborhoods and walk ¼ of a mile in the dark, rain, snow, and cold along unwelcoming streets to reach this development. Tensions really run deep if neighbors call police to tow cars parked along the yellow curbs.  

While conducting research for writing this article, I discovered that the parking problem was only the tip of the iceberg.

Back in May, 2001, the residents had to petition the mayor to stop the construction of an already approved exercise trail, because it compromised their sense of privacy and safety. In addition, in 2002, the Town staff had declined to approve any decks in the neighborhood because none of them could satisfy the set-back requirements.

Luckily, then-candidate for mayor, Rick Thoesen, while campaigning in the neighborhood, came to know about the problem. Shortly thereafter, the staff reversed itself.

The residents also cannot enjoy the open space and trees in the development, because three unimaginatively placed homes block their view. Last but not the least, some the units are so close to each to other as to enable neighbors to greet each other while sitting in their respective homes.

The development also does not present itself well for the town. Extraordinarily small spaces between homes that accentuate the large mass of the buildings catch the attention of those traveling along Van Buren Street. They make the neighborhood look like a fortress – blocked off from the adjacent neighborhoods.

The development also looks unattractive, because: (1) one sees the backs, rather than the fronts, of the homes along three sides, (2) vinyl siding dominates the view, even though a few homes have brick facades, (3) a white picket fence around the storm-water pond that seems to embrace three homes is a bit disconcerting and (4) the fence around the development is not particularly appealing to the eye.

The Town Council either did not know about these issues or did not dispose them off effectively during its meetings in 1997.

Perhaps the fault lies in the process in which the Town Council provides little or no input to the staff in the early stages of an application. Perhaps, the politics of the decision-making process at the council level are to blame for the poor results.  Or, perhaps, the organization of the review team that is dominated by the Planning staff is the Achilles’ heel.  

This case presents an excellent example for understanding the issues and starting discussions among our residents. 

ACTIONS TAKEN BY THE STAFF           

1.  The Wrong Start

The root cause of the problems, in this case, lies in the decisions planning staff took at the very start of the case in May, 1996, even before it had gathered all of the relevant information. For instance, 

• It asserted that, “it is possible to argue that it would be difficult for this site to provide a meaningful, developed, active recreation area.”   This argument indicated that the staff was willing to support the application without respecting the spirit of the requested RGC zoning.
• It used an incorrect definition of density to compare the proposed development with the neighboring areas. This decision led to the use of a wrong benchmark for negotiating with the developer.

These positions strongly influenced the tenor of its negotiations with the builder, its discussions with other employees of the town and the contents of its own reports. The initial positions also influenced how issues were presented to the Planning Commission, the Architectural Review Board and the Town Council. They also prevented the staff from taking advantage of the diversity of views in the town.           

2.  The Staff Forcing Its Will

Unfortunately no one in the government, the Town Manager, the Planning Commission, the Town Council (TC) and even the Architectural Review Board (ARB) were willing and able to challenge the Town planning staff.  

As it shepherded the project from May 1996 until its approval in March 1997, it pulled all the strings and “won” everything that it wanted. It and it alone decided, without gathering the necessary information, that the developer (1) could not afford to provide active recreation at the site, (2) could afford only 27 units, and (3) needed to go through an ARB review before the TC review. When the ARB’s concerns conflicted with its own decisions, it conveniently ignored them. Later, it drew up the architectural guidelines for the ARB to use in the site plan stage.  It seemed to be telling the respected architects on the ARB what the issues were and what they should decide.           

3.  Not Doing Its Own Work

The strange part in all of this is that the staff did not focus on many planning issues – its area of expertise. It did not (1) articulate the effects of accepting a private street, (2) fully evaluate how the phrase “substantial conformity to the GDP” could be used by the developer to his advantage, (3) pay attention to the need for visitor parking, (4) consider how various parts of the code (such as those requiring building of decks) would affect the RGC districts, (5) pay attention to the privacy concerns of future residents, (6) articulate the differences between R-10 districts and the more urban RGC districts, (7) even mention, much less calculate, the monetary benefits the developer could realize by consolidating the three parcels, and (8) consider meeting the spirit of the RGC regulation. Once it had made some of its initial decisions in May-June of 1996, it did only those things that were necessary for shepherding the application through the bureaucracy.

ACTIONS TAKEN BY THE TOWN COUNCIL

1. Inability to question the wrong criteria?

By the time the Town Council undertook its review in February 1997, the staff had built an impressive administrative record.  The other town staff, the builder and his attorney, and the Planning Commission were all on board.  Still the TC review caused many concern, especially about the density of the development.

Although three councilmembers were extremely concerned about the high density, none of them asked the right questions to discover the mistakes in the staff’s analysis and force a debate. If only one of them had asked, why the staff was not comparing actual gross density of the existing neighborhoods with the gross density of the proposed development, they might have found a valid reason to reduce the number of permissible units. Even the two-week delay did not help the matters much. It appears the three did not even talk with each other during the delay. Eventually, after “kicking some dirt” they caved in.  The majority on the council still may not have agreed to lower the number of units (because it was not appreciative of how the reduction would enhance the development), but at least there would have been a sound reason for having a debate.

2. Inability or Unwillingness to Consider Enormous Benefits to the Developer

Mayor Rust asked the council-members to decide whether the disadvantages of high density outweighed the benefits to the town. On his part, he suggested that the proffers offered by the developer might not be available under the R-10 zoning.  It was an incorrect phrasing of the issue.  The real issue was whether the benefits would still be available at slightly lower density. No councilmember challenged the mayor nor did he do any analysis to develop an independent position.  According to our analysis, the developer stood to make between $1milion and $1.5 million just by consolidating the three lots.  He would make more profit by selling the residential units.  He would have never walked away whether the zoning had stayed at R-10 or the number of units had been reduced. With all the experience on the council, no councilmember raised the potential profitability of the project for the builder.  

3. Inability to Evaluate the Implications of the Proffers Carefully

The council did not have much discussion about other important issues either. The council did not ask any questions about visitors’ parking or about the variances that might be required to build decks and fences (in fact, there was no hint that such issues would arise in the future).  Also, without discussion, the council approved a private street for the development. No councilmember seemed aware of the approval’s effect on the availability of street parking or an increase in the size of homes.  The council also approved the developer’s proffer to build units with at least 2,800 sq. ft. of space without any discussion of how the developer might use the phrase “at least” to increase the size of the homes to between 3,300 sq. ft and 3,900 sq. ft and reduce the distance between homes to as short as 6 ft.  Nor did they discuss how the developer could use the phrase “in substantial conformity” in another proffer to make major changes after the approval of the rezoning by the TC.  Yes, the Town Council did make a few small changes and asked for more cash proffers, but it failed to ask any insightful questions. 

4. Inability to Consider Architectural Review Board’s Opinion

As a result of this lack of ability and willingness on the part of the councilmembers, the residents of Herndon while driving along Van Buren Street, now have to contend with what looks like a fortress, the striking narrow spaces between homes, the unattractive backsides of the buildings and the general incompatibility of the development with the adjoining neighborhoods.  That is exactly what the Architecture Review Board (ARB) of the Town had warned against before the Town Council approved the rezoning application.  

Back in January 1997, some members of the ARB had also warned that the overcrowding of the houses would have an adverse effect on the monetary value of the homes. The creation of court-yards, a wider street, a private recreation area, sufficient visitor parking and a welcoming street level view would have made this a much more enviable development – perhaps a gateway as originally envisioned by the staff. 

HOW DO WE MOVE FORWARD?

The Town’s administrative processes have not changed at all since the approval of this project.  In fact, a recently approved project, Vine Haven, suffers from some of the same deficiencies. Even though the two cases are different in many ways, the staff and the TC behaved in an identical manner.  They are in a symbiotic relationship that does not produce the best results for the town. 

As this case suggests, the residents pay a high price for government processes in which the staff makes important decisions early in the process without council input, and councilmembers, either do not ask any questions or even when they do have serious questions, they cannot easily challenge the staff.  If we want to overhaul this dysfunctional system, we might start by asking the following questions:

• If such distinguished councilmembers as Rick Thoesen, Carol Bruce and John DeNoyer, each of whom was either the Mayor or Vice Mayor at one time or another, suspected that there was something drastically wrong with the staff’s analysis, then what should they have done more than they did in this case to achieve better outcomes?  If so, what, how and when?
• What action should the councilmembers have taken when it was obvious that the proffers had not been evaluated carefully, the objections of the ARB had been given scant consideration, the benefits to the developer had not even been mentioned or the implications of approving the private street had not been discussed? What if they were in minority?  How should we protect the long-term public interest in such instances? Should  a different set of standards and rules be developed in order to run TC meetings? 
• What could the TC have done to ensure that the staff’s work was unbiased, technically accurate, and complete? What checks and balances or performance measures can possibly be developed for achieve these objectives?
• What role should the council have played in monitoring the progress of the project before it reached its desk? If so, how?

For a more detailed discussion, please read the Main Article on PRESIDENT'S COURT at HerndonOpinion.

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