The Honorable Jeff McKay
Chairman, Board of Supervisors
12000 Government Center Parkway, Suite 530
Fairfax, VA 22035
Re: Uncodified countywide ordinance amendment streamlining public
Dear Mr. Chairman,
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.
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.
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.
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
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
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