Planned Sully District Council of Citizens Associations Testimony on zMOD2 to the County Planning Commission

Planned Sully District Council of Citizens Associations Testimony on zMOD2

The passage of zMOD will affect virtually every homeowner in the county, and not in a good way.

ZMOD is the new zoning ordinance—the whole thing--that the Board of Supervisors intends pass for a second time within a few weeks!  The Board’s first try was deemed illegal by the Virginia Supreme Court not on substance, but for failing to adhere to the procedures required for legislative approvals, specifically using only video hearings. 

The nominal intent of zMOD was to “streamline” the more than 1,000 pages of the existing zoning ordinance which, on the face of it, is not a bad idea.  However, the true intent of the zMOD effort quickly became apparent:  It is intended to limit residents’ input to changes in the rules and project approvals.  In short, it will expand the types of housing and other activities that may be developed in the county and severely limit your rights to have a say in what development occurs in your neighborhood and community. 

Clyde Miller, a local attorney and President of the Holmes Run Valley Citizens Association, who wrote an extensive analysis of the proposed changes in 2021, put it this way:

The changes jeopardize neighborhoods by substantially expanding uses allowed while choking off means by which residents are able to protect their communities. The principal problems are:

• Proposals to change regulations without thinking through unintended consequences and providing effective protections for neighborhoods,

• Proposals to nullify current regulations that protect neighborhoods and the Board has authority to modify on a case-by-case basis,

• Proposals for administrative permits where special permits are required to allow resident participation in shaping developments in their communities,

• Proposed uses insufficiently limited in scope by ordinance language, and

• Inadequate provisions for county inspections where uses have a potential to damage communities.

This article relies extensively on his 39-page paper available via the link above.

The specific areas in which developer and county rights are expanded at the expense of residents include the following:

• Home-based businesses (HBBs)-- zMOD is proposing three unlimited/unqualified home business uses that should not be allowed, retail sales, small-scale production, and health and exercise.  Moreover, zMOD senselessly has expunged provisions for county inspections from HBB (and ALU) regulations.

• Accessory Living Units (ALUs)—As ALUs would be allowed on any single-family development (SFD) property, one principal concern is the risk that SFD neighborhoods would be redeveloped at twice their current density.   A second concern is that ALUs, with their second kitchens, are attractive candidates for conversion into boarding houses, dwellings with many more occupants than allowed by the ZO. Double-density redevelopment and boarding houses easily would destabilize neighborhoods

• Freestanding accessory structures--The current ZO allows a single-family dwelling one enclosed freestanding accessory structure. The floor area may not exceed 200 sq ft. zMOD proposes to allow, by right, any number of enclosed freestanding accessory structures with a combined floor area up to 50% of the gross floor area of the dwelling.  

• P-district regulations—This specifically includes Reston’s PRC (Planned Residential Community).  zMOD proposes to delete the requirement that P-districts must taper down in density and provide compatible landscaping and screening at their peripheries.  Yet the county’s comprehensive plan for TOD areas states, “TOD area(s) may be generally defined as a ¼ mile radius from the station platform with density and intensity tapering to within a ½ mile radius from the station platform, or a 5-10 minute walk, subject to site-specific considerations. . . To protect existing stable neighborhoods in the vicinity of transit but not planned for transit-oriented development or redevelopment, and to focus density toward the station, Area Plans should include clearly delineated boundaries for transit-oriented development based upon these criteria.”

• Commercial Revitalization District regulations—In Reston, Lake Anne Village Center is a CRD.  A proposal for CRDs would allow a reduction of setbacks from the current 25-40 ft to 20 ft and would allow an increase in building heights in C-6 and C-8 districts from 40 to 50 ft, i.e.—more density, less open space.

• Food trucks--zMOD proposes that food trucks, with administrative permits (i.e.—staff decision not requiring a hearing) should be allowed to operate on private properties of non-residential uses in R-Districts.  The issue here is similar to the promise that, in issuing administrative permits for HBBs, the county, in its wisdom, would allow only those that would not trouble neighbors.

• Cluster subdivision open space--In a cluster subdivision, the current ZO requires that at least 75% of open space or one acre, whichever is less, must be a contiguous area with no dimension less than 50ft. The draft proposes to delete the 50-ft requirement.

As highlighted in Mr. Miller’s paper, three themes emerge from the proposed changes in the county’s zoning ordinance:

• The first is an effort to push residents out of the process making land-use decisions affecting their neighborhoods.  Decision making would be moved to staff where supervisors can get their hands on them.

• The second is a disregard for repercussions for quality of life in residential neighborhoods. How else could zMOD propose changes to accessory dwelling regulations without thinking through the consequences?

• The third is a goal to change regulations for the sake of changing regulations. Why else would zMOD propose to delete provisions for county inspections?

There are MANY MORE CHANGES to the zoning ordinance outlined in Mr. Miller’s analysis of the revised 581-page zoning ordinance.  PLEASE refer to his work at this link to learn HOW this ordinance change WILL affect you IF BOS passes it in early May.  They fully intend to do so with little warning to us, Fairfax County residents.

A Huge Zoning Victory for Fairfax Residents in the Fight to Preserve Our Rights, but Only the Beginning

In a stunning turn of events, the Virginia Supreme Court unanimously ruled yesterday that the Fairfax County Board of Supervisors violated the Virginia Freedom of Information Act (VFOIA) in approving the zMOD zoning ordinance, adding that it was invalid from the outset (“void ab initio”). 

The key reason for overturning the ordinance was that the Board failed to have any public hearings, just video access which the Court found insufficient. The Board’s argument was that it was important to move expeditiously to approve the ordinance, but the Court noted that the county had been working on the ordinance for five years without urgency. 

This is the first case in which the McKay regime has been censured for its arrogant “forget-the-public” approach to county governance.  The theme behind the zMOD initiative was “streamlining” the development approval process by largely eliminating opportunities for public input, in part by making many decisions administrative without public input or official Board involvement. 

No court reversal could be bigger because the Court’s judgment was the only obstacle to developers working the county Department of Planning and Development (DPD) into decisions that would undercut the already limited restrictions on development in the zoning ordinance.  If zMOD had not been reversed, there would be no way to roll back these administrative and other provisions in this Dillon Rule state of irreversible “by right” development.

The state court’s decision raises at least a couple of questions about the impact of policy and development actions taken based on zMOD since the court said zMOD was void from the outset. 

·       What will happen to current Board initiatives that take on zMOD’s “streamlining” flavor?  Maybe first among these is the so-called “Parking Reimagined” draft zoning ordinance that would reduce minimum parking requirements across the county by as much as 40% in high-density areas.  Part of that draft ordinance states that the Director of Planning and Development can approve changes to the minimum requirement administratively in a wide variety of circumstances.

·       What will happen to development approvals given under the new zMOD ordinance since that the ordinance is void from its outset?  What about those projects already built or under construction or in the design and engineering phases? 

We all need to be vigilant to see how the county handles these numerous issues—and doesn’t just make them worse.

Most importantly, what about the substance of zMOD?  The court’s decision focused on the process of approval that failed to meet VFOIA requirements, not the merits of the zMOD zoning ordinance.  At first blush, that means the Board could just take the same draft zoning ordinance and pass it through the proper steps, including a public hearing.  Nonetheless, since “streamlining” is central to zMOD by shifting much decision making from the Board to the staff that would not require public input, zMOD’s provisions could run into the same issues of public access—meaning another court case to preserve citizens’ rights.  To prevent that cost and delay, it is important that the residents of Fairfax keep challenging efforts by the Board to exclude or reduce citizen participation in their own government’s decisions.   

We should all thank the community leaders across the county who took on the task of challenging Jeff McKay’s high-handed Board of Supervisors effort to take our right to be heard away from us, not to mention to actually listen to what we say. 

We need to seal the deal on Fairfax County zoning by preventing a new zMOD V2 and other Board initiatives that also intend to cripple resident participation in our government and make the county less livable.  Unless we remain vigilant and proactive, we are likely to see our county government turn into McKay’s mafia. 

 

Terry Maynard

Reston, VA

 

 

Virginia Supreme Court throws out county zMOD zoning ordinance

In a unanimous decision published yesterday, the Virginia Supreme Court threw out Fairfax County's zMOD zoning ordinance intended to "streamline" development project approvals.  The essence of its judgment was that the county's decision process violated VFOIA requirements for opportunities for public input.  Here are some key passages:

The process that led to the ultimate adoption of Z-Mod demonstrates that its adoption was far from time-sensitive. After all, the revision process began in 2016—five years before Z-Mod was adopted and three years before the existence of COVID-19 publicly was known anywhere in the world. This multi-year history of consideration and revision before adoption conclusively demonstrates that there were not hard and fast deadlines, statutorily required or otherwise, that needed to be met. Prior to the Z-Mod revision, the zoning ordinance had existed for four decades and absolutely nothing suggests that Z-Mod needed to be adopted to satisfy due process or other constitutional requirements, protect public safety, or sustain the County’s economy.  Everything about the history of Z-Mod suggests that the adoption of Z-Mod could have waited days, weeks, or months without throwing the County’s operations into even minor distress let alone chaos. Simply put, the consideration and adoption of Z-Mod was not time-sensitive, and thus, acting on it in March 2021 was neither essential nor necessary to allow for the continued operations of Fairfax County government.

. . .

Having concluded that the Board adopted Z-Mod in a manner that violated the open meeting provisions of VFOIA, we turn to the question of remedy. The (Fairfax County) Residents argue that, because “Z-Mod could not be adopted through an electronic meeting[,]” the Board’s purported adoption of Z-Mod was and remains “void ab initio[.]” We agree.

By failing to hold the meetings at which Z-Mod was considered and ultimately adopted in compliance with VFOIA’s open meeting requirements, the Board’s actions prevented the public from participating in the manner required by VFOIA, and thus, potentially limited public participation and input into the process. As such, the Board’s failure here is analogous to the circumstances in our prior cases in which a zoning ordinance was adopted despite the failure of the locality to provide the statutorily required public notice. In such cases, we have held that such ordinances are void ab initio. See, e.g., Glazebrook, 266 Va. at 557 (holding that certain “zoning ordinances passed pursuant to [defective] notices . . . are void ab initio”); Powell Valley Vill. Ltd. P’ship, 254 Va. at 74 (recognizing that a “[f]ailure to abide by the statutory prescriptions for the adoption of an ordinance renders the ordinance void ab initio”); City Council of City of Alexandria v. Potomac Greens Assocs. P’ship, 245 Va. 371, 378 (1993) (stating that, because the city “failed to give the requisite notices . . . , the TMP Ordinance is void ab initio”). Accordingly, we conclude that the Board’s failure to comply with VFOIA’s open meeting requirements renders Z-Mod void ab initio.

CPR Fights to Protect Reston’s PRC in Proposed Zoning Ordinance (zMOD) Presentations

 

  

WHAT IS zMOD? zMOD is short for Zoning Modernization.  Fairfax County’s zoning ordinance is the law that describes permitted uses for various sections of land (residential, commercial, or industrial areas, density of uses, building heights, placement of buildings, parking, acceptable uses, etc.) 

ISSUE: Fairfax County staff is rewriting its zoning laws.  County residents were told that  the modernization would not introduce substantive changes.
 
GET THE FACTS: The Fairfax County Board of Supervisors has a lot to think about after the community spoke yesterday on why a one-size-fits-all approach to zoning is simply misguided! Reston residents, led by the CPR team, did a great job covering the key problems with zMOD and what it could mean for planned communities like Reston. Tell us what you think.  
 
Right NOW, the Board of Supervisors are deciding if they want to make any changes to the proposal presented by staff.
 

The Board of Supervisors need to hear from you
NO LATER THAN SUNDAY NIGHT MARCH 21st

 
Please write to our Supervisor Walter Alcorn and the Fairfax County Board of Supervisors to let them know what changes you want to see most before their meeting on March 23, 2021. 
 
695 pages of zoning language can be a daunting task to analyze. For example, the mandated zoning language, Article 9: 9100.2 "Must" and “Shall”  must not be removed from the zoning laws that protects Reston's density (page 627 of zMOD).
 
Other recurring themes we see include:

• Proposals that change regulations without thinking through unintended consequences and without providing effective protections for neighborhoods from over-development,
• Proposals that nullify current regulations that protect neighborhoods from poor or unplanned growth,
• Proposals that promote the Board’s authority to modify on a case-by-case basis (aka spot zoning by special exception),
• Proposals that use administrative permits where now permits are currently required. Special permits allow resident participation in shaping developments in their community’s administrative permits do not even require notification,
• Proposed uses that are insufficiently limited in scope by ordinance language, and
• Inadequate provisions for county inspections or enforcement where uses have a potential to damage communities, pitting neighbors against neighbors and instigating disputes where none exist now.
   

Watch a replay of CPR’s zMOD Testimony before the Board of Supervisors’ hearing on March 9, 2021

RCA Resolution Opposes Many New Provisions in the zMOD Proposal up for Board of Supervisors Consideration

WHEREAS, in 2017 the Fairfax County Planning and Zoning staff (the “ Staff”) embarked upon the Zoning Ordinance Modernization Project, (“zMOD”) amajor initiative to modernize Fairfax County’s 40-year old Zoning Ordinance, intended to: modernize permitted uses and regulations; make the Zoning Ordinance easier to understand; and create a streamlined, user-friendly document with tables, graphics, and hyperlink, and 

 

WHEREAS, the November 24, 2020 zMOD proposal(the “Proposal”)presented to the Board of Supervisors(the “Board”) also includes “amendments to zoning laws by prioritizing proposed changes of county-wide significance,” while avoiding the long standing and useful process of subjecting each of the proposed amendments to a process of public comment, and 

 

WHEREAS the Proposal includes many zoning ordinance amendments that would significantly impact the physical appearance and quality of life in Reston and in the other portions of the County, and 

 

WHEREAS added social and community stressors caused by COVID-19 have negatively impacted the amount of time given to the public to review and comment on the document of over 700 pages;and 

 

WHEREAS Reston Citizens Association (RCA)’s mission is to promote Reston’s vision and planning principles, to sustain and enhance its quality of life now and in the future, by serving as a non-partisan, citizen centered organization for all people living in Reston now and in the years to come. 

 

NOW, THEREFORE, BE IT RESOLVED that RCA strongly urges the Board to restore zMOD to its original mission to modernize existing permitted uses and regulations and to make the Zoning Ordinance easier to understand; and 

 

BE IT FURTHER RESOLVED that RCA strongly opposes the introduction of multiple provisions to the zMOD proposal that have not been properly assessed and reviewed by those directly affected by the long term impact these untested measures would have on established communities;and

 

BE IT FURTHER RESOLVED that RCA finds many of these new proposals to be inadequately thought out with little to no understanding of the actual effect such measures will have on the citizens of Fairfax County.Specifically, we believe controversial proposals such as those changing regulations and zoning on Accessory Living Unit (“ALU”), Home Based Business (“HBB”), Food Trucks, Parking, and signage should be removed from the current zMOD proposal and given due consideration with full community participation during the expected second phase of zMOD review; and 

 

BE IT FURTHER RESOLVED that RCA finds utility in many of those portions of zMOD that adhere to its original advertised mission and we support these provisions going forward if the problematic measures are removed.   A detailed review of the measures we support and those that should be deferred for future study is contained in the following Appendix. 

 

Approved by the Board of Directors of Reston Citizens Association, January 19, 2021.

 

Dennis Hayes, President

Lynne Mulston, Vice President

 

 -----------------------------------

 

APPENDIX 

 

 

WHEREAS RCA supports the Proposal's provisions to address and provide a zoning framework for newer commercial, public, institutional and community uses such as solar power facilities, electric vehicle charging and data centers, last-mile distribution hubs, and private collection of solar energy as an accessory use in residential areas, as appropriate in the circumstance, without any direction to do so.

 

Be it further resolved that,RCA supports the Proposal's intent not to interfere with, limit, or invalidate any easements, covenants other agreement between parties, such as declarations of covenants, conditions, and restrictions for homeowners’ and condominium associations which are intended to run with the land and binding on homeowner/condominium association property owners. 

 

Be it further resolved that,RCA supports proposed changes to rear setback requirements for residential corner lots which had been proposed by RCA to prevent overbuilding these properties. 

 

Be it further resolved that, RCA has reviewed and discussed the Proposal and while generally supportive of the Proposal, it is opposed to a number of its proposed provisions discussed below. 

 

Be it further resolved that, due to the unevaluated but likely considerable strain the additional residential density could place on school overcrowding and local infrastructure RCA does not support the following Proposal’s provisions regarding Accessory Living Units (“ALUs”) on pages 40-46 of the Proposal:

• RCA opposes the Proposal’s provision for an option for the Board that would remove the current requirement that someone on the property, either in the principal dwelling or the ALU, be at least 55 years in age or a person with a disability.
• RCA opposes the Proposal’s provision for an option for the Board that would allow the size limitation to be exceeded if the ALU is proposed to fully utilize the floor area in a basement or cellar, since basements with their own entrances effectively create duplex dwelling units; the ordinance should apply the size limitation to basements with their own entrances, unless they are to be occupied by family member(s) over 55 years of age or persons with disabilities. 

Be it further resolved that, in order to minimize the encroachment of commercial-like uses on areas that are primarily zoned as residential, RCA does not support the following Proposal’s provisions regarding Home-based Businesses(“HBBs”)on pages 47-48 of the Proposal: 

• RCA opposes the Proposal’s provision for the Board to allow “zero to four customers on-site at one time and zero to eight customers on-site in any one day”.•RCA supports no more than 2 customers at a time and a maximum of 6 customers in a day, for all dwelling unit types.
• RCA opposes the Proposal’s provision that would allow a by-right display of 12 square feet of permanent yard signs for HBBs in residential districts, since commercial signage should be restricted differently than personal expression.
• RCA opposes the Proposal’s provision that would allow HBBs to obtain administrative permits for up to 21 days of Special Events in residential districts. 

Be it further resolved that, in order to ensure structure compatibility in residential neighborhoods, RCA does not support the following Proposal’s provisions regarding Freestanding Accessory Structures on pages 18-19 of the Proposal): 

• RCA opposes the Proposal’s provisions that would allow by-right an unlimited number of Accessory Storage Structures with a combined enclosed area of up to50 percent of the gross floor area of the principal structure.
• RCA opposes the Proposal’s provisions for the Board to allow a by-right increase in the height of Freestanding Accessory Structures to 25 feet; the ordinance should include a maximum by-right height of 15 feet on lots under 36,000 square feet, and the Board of Zoning Appeals may approve a special permit for an increase in height.

Be it further resolved that, certain uses should require additional review considering neighborhood impact, so RCA opposes the following Proposal’s provisions that require only an Administrative Permit, unless such permits are conditioned on stronger standards and increased public notice and participation, in particular: 

• RCA opposes the Proposal’s provisions to allow HBBs in residential districts through administrative approval; the existing public hearing process should continue to be required.
• RCA opposes the Proposal’s provisions to allow ALUs through administrative approval; the existing public hearing process should continue to be required.  
• RCA opposes the Proposal’s provisions that allow Food Trucks in residential districts through administrative approval, on pages 376-8 of the Proposal; the ordinance should include additional standards for days, number of trucks, location and distance relative to residential properties.
• RCA opposes the Proposal’s provisions that allow Special Events hosted by home-based businesses in residential districts through just an administrative approval, on pages 383-4 of the Proposal; the ordinance should include stronger limitations on commercial and promotional special events by HBBs in residential districts.

Be it further resolved that, RCA supports the Proposal’s recognition of maximum building heights in the Comprehensive Plan for Commercial Revitalization Districts (“CRDs”) on page 209 of the Proposal, provided that the ordinance specifies definitive standards for calculating height (e.g., inclusive of Affordable Dwelling Units and Workforce Dwelling Units), intended use, floor heights, and a limited vertical addition of not more than 10% of total building height for a mechanical penthouse. 

 

Be it further resolved that,RCA opposes the Proposal’s provisions that allow the Board to reduce parking below requirements in the Comprehensive Plan for Commercial Revitalization Districts (“CRDs”) at 3102.3.E.2 on pages 210-11of the Proposal; the ordinance should require that the Board take into consideration whether a CRD is readily accessible by mass transit. 

 

Be it further resolved that,RCA opposes the Proposal’s provisions that would eliminate the 50 foot minimum dimension requirement for Cluster Subdivision Open Space on page 21 of the Proposal; the ordinance should retain the current requirement for Board approval of a waiver of the 50 foot minimum dimension.

 

Be it further resolved that, RCA opposes the Proposal’s proposed removal of the current requirement for Planned “P” districts to generally conform with the bulk regulations and landscaping and screening provisions of the most similar conventional zoning district, on pages 7-8 of the Proposal; this regulation should be retained in order to limit the visual impact on existing neighborhoods from adjacent new planned development. 

 

Be it further resolved that, RCA requests additional restrictions on storage of vehicles on properties in residential districts, including: 

• Vehicle Storage limits (page 354) in the Proposal should establish that covering a vehicle with a tarp or fitted vehicle cover does not alone satisfy the definition of “completely screened from view” in accordance with County Code.
• Vehicle Storage limits (page 354) in the Proposal and Article 6 Residential Parking (page 509) should each include a limit on the number of vehicles regularly kept outdoors, with an advertised range of 7 to 9 vehicles.

Be it further resolved that, RCA requests that the environmental easement set forth is clarified to ensure that the 25’ easement noted specifies that trees and other ‘green’ growth are not negatively impacted. 

 

Be it further resolved that, RCA is concerned with the efficacy of the relationships and actions related to or between County staff and consultants/contractors associated with zMOD;and to further include consultant/contractor direct presentation and actions with citizens and businesses of the County.

 

Be in further resolved that, RCA asks that the appropriateness of proceeding with zMOD in relation to Governor Northam’sCOVID-19 regulations and that such proceedings be examined by appropriate legal authority.

 

Be it further resolved that, RCA requests that watershed,tree canopy, wildlife habitat, and air quality not be negatively impacted from the existing zoning ordinance to any changed zoning ordinance.