Former Planning Commission Vice Chairman Jim Hart opposes Supervisors' efforts to "streamline" public hearings during the Coronavirus emergency.

The Honorable Jeff McKay

Chairman, Board of Supervisors

12000 Government Center Parkway, Suite 530

Fairfax, VA   22035

 

Re:  Uncodified countywide ordinance amendment streamlining public hearings

 

Dear Mr. Chairman,

 

I understand the Board will take up tomorrow at 2pm an ordinance amendment streamlining public hearings during the Covid-19 emergency.  I write to oppose the draft wording, which exceeds the scope of Attorney General Herring's opinion, as well as the spirit of Governor Northam's orders on the Covid-19 emergency.   

 

Certainly the Board must take up some "essential" matters during an emergency.  The budget, public health, and provision of emergency services are required for the ongoing function of government.  But the draft amendment on p. 119 of your packet is so broad and flexible that it invites abuse of that streamlined emergency process, and an expansion into land use matters.

 

The defiinition of "Continuity in Fairfax County government" on p. 119 is so vague as to be meaningless.   It includes, "without limitation," almost anything, including "applications . . . or other requests" and "measures that help sustain the County's economy" which conceivably could be every land use application that causes economic activity [construction, real estate, commerce, taxes, etc.].   What case arguably doesn't help sustain the economy, in some way?  There should be some "limitation" on the authority of a supervisor, or the Board collectively, to approve anything, ostensibly within this overbroad definition, as an essential continuation of the function of government.  

 

This vague definition kicks in under D.3. (B)(3).  As long as the Board votes that the matter is necessary to assure "continuity in Fairfax County government," a land use case goes forward.   It is an open secret that the Board members routinely defer to the district supervisor on land use matters.  Several land use cases on Tuesday's agenda appear to be going forward for public hearing under the streamlined procedures, apparently sufficiently "essential" in the supervisor's view, confirming the potential for abuse of the Board's expansive new power, at the expense of citizen participation and transparency of government.

 

Over the weekend, I wrote several Board members, objecting to one example of a non-essential land use matter on the Board's April 14 agenda, the controversial "townhouses-under-the-flight-path" case in Sully District.  Although the ordinance requires the Board to allow "in person" testimony now, under the new streamlining, citizens must instead submit written or youtube testimony in advance, or call in by phone.  But if the speakers are not permitted to be present for the staff presentation or the applicant's presentation, they cannot rebut anything or correct misstatements, or react intelligently to the comments of other speakers, part of the robust give-and-take of a meaningful public hearing.  Nor can any citizens conduct site visits now, to prepare their testimony.

 

Land use cases, except perhaps in extraordinary circumstances, are not "essential" within the spirit of the Governor's orders.  But if they are mischaracterized instead as "measures that help sustain the County's economy," almost any development application can be described as "essential" under this overbroad language.  This vague definition invites abuse of the Board's power, to eliminate the inconvenience and embarrassment of, for example, citizen opposition or MWAA opposition on the "townhouses-under-the-flight-path" case, or other controversial matters.

 

Transparency and accountability of government must be maintained, even during Covid-19.  "Streamlining" the public hearing process with such expansive powers goes too far, and severely restricts the citizen participation on any case a supervisor wants to move forward during the virus situation, in any district.  The virus emergency is no excuse to adopt streamlined procedures that facilitate land use cases going forward without meaningful citizen participation in the public hearings.  Reasonable limitations on the Board's powers should include some more specific clarification of what matters, such as the budget, are truly "essential."   These limitations on emergency powers should specifically exclude the typical land use case, even if in some sense it may relate to the County's economy in some general sense. 

 

Thank you for your consideration of this issue in this difficult setting.

 

James R. Hart

6504 Trillium House Lane

Centreville, VA   20120

jhart@harthoranlaw.com