Board of Zoning Affairs Baffled: Do Citizens Count?

Valentine artwork from the Piemont Environmental Council.

I first found that things had not gone as planned for at the Blacksburg Board of Zoning Appeals when I checked in over at Blacksburg United for Responsible Growth's Google group and found my friend Shawn had sent a letter to the BZA after attending the hearing yesterday.

Three homeowners impacted by Fairmon's South Main development had appealed the Town zoning administrator's site plan approval on the grounds that ordinance rezoning the land to commercial use had required compliance with an application which set out an idyllic vision of small shoppes and residential housing.

Here's what the ever-eloquent Shawn wrote to the BZA:

I have lived in Blacksburg off and on since 1983. This is my third time living back in Blacksburg and there are many special things about this town that draw me
back.

I attended Wednesday's hearing in which 3 citizens were scheduled to be
heard in an appeal of the Zoning Administrator's approval of Phase I of the
South Main development project and watched with interest as the Board seemed
very unclear about how to proceed in the face of the Fairmount and Llamas,
LLC lawyer's claim that these citizens didn't have a right to be heard on
this issue.

What is the appeals process for? Isn't it a vehicle for concerned citizens
to be heard on issues of zoning? Isn't it a process put in place to help
insure that zoning decisions made by the officials of the Town of Blacksburg
are in fact serving the benefit of the Town of Blacksburg? If a citizen
says they have a concern, don't they have a concern? What could possibly be
gained by not hearing the concern?

Let's consider the motivations of the three appellants (whom I do not know
personally). They are citizens of Blacksburg. Two of them have homes on
what is now a residential street but will become one of the main
thoroughfares to the proposed shopping center (originally characterized as a
mixed use small scale retail including residential). They volunteered their
time to file an appeal. Why would they use their energy in this way?

They are probably concerned about new traffic on the street in front of
their home. They may be concerned about a decrease in the value of their
home. They may be concerned about the safety of bicyclists, pedestrians,
and school children on their street.

They may be concerned about these things because the character of the
shopping area as it currently stands is significantly different from the
character of the mixed use residential proposal in the rezoning application.

How did a development so different from the one originally proposed get
approved? The Town Council made a conditional rezoning based upon a plan in
the application, and then the Zoning Administrator approved plans that were
very different from that plan, without the knowledge of the Town Council.
This process is flawed and begging for appeal.

Let's consider the motivations of those filing the objection of the right of
these citizens to be heard. The lawyer is paid hourly to act in the
interest of his clients. His clients probably can make more money with an
entirely retail development as opposed to one including residential.
Furthermore, changes to their plans now would be costly.

And what is the purpose of the BZA? Is your priority to hear citizen
concerns and insure zoning process is followed? Or is it to protect the
financial interests of developers?

I for one am grateful for the three citizens who have put their time and
energy into this matter, and I hope they will be heard with open ears in two
weeks.

According to Caleb Fleming's story, "Still stuck standing" in today's Collegiate Times (hat-tip to Shawn, who pointed me to the story when we chatted this evening), the case has been postponed for two weeks and

It was agreed that [Blacksburg attorney Jim] Cornwell would be contacted and, if available, should advise appellants. The board also agreed to allow Sprague, Rogol and Guest to submit additional supplemental material to compliment what was already presented in an effort to prove they qualify as an aggrieved party.

Meanwhile BURGers have been over at Matthew Fredmonsky's February 10 story in the Northeastern Ohio's Record Courier, "New developers on the block in Kent"

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Today, being Valentine's Day, I got this LOVEly news from Alison Baird, Virginia Senator John Edward's legislative aide, regarding email I'd sent opposing replacememt of the current cash proffer system with limited impact fees--something for which developers have been lobbying.

Senator Edwards voted against this bill when it passed the full Senate on a vote of 21-19. Senate Bill 768 is now before the House of Delegates for consideration.

Chris Miller of the Piedmont Environmental Council sent me an email to let me know that you can write your member of the House using this webpage. Remember for the most impact, personalize your email.

Currently, Virginia's proffer system allows local governments to ask developers to help pay for growth of infrastructure necessitated by new residential projects. Midlothian Republican John C. Watkins's (email) Virginia SB768 would repeal local authority to accept voluntary cash proffers, limit authority to accept off-site non-cash proffers (which might be used as sites for schools, libraries and parks, for instance) and replace voluntary negotiated proffers with an impact fee of per house of $8000 per single family house in Northern Virginia and $5000 elsewhere throughout the Commonwealth. The Virginia Association of Counties Board of Directors, representing all 95 counties, unanimously adopted a resolution calling for defeat of SB 768.

Here in Blacksburg, it's been said that the proffers accepted by Town Council will not offset the costs anticipated in the already problematic traffic study. Today, Penny Gross a member of the Fairfax County Board of Supervisors, had this to say in her column, "A Penny for Your Thoughts: The News of Greater Falls Church" in the News-Press.

Last week’s Legislative Day in Richmond, sponsored by the Virginia Association of Counties (VACo) and the Virginia Municipal League (VML), convened nearly a thousand local elected officials from all over the Commonwealth. The annual trek to lobby General Assembly members about legislation with local impacts often is an exercise in futility, as some delegates and senators view local governments as “just another special interest group,” as one delegate put it last year.

She sums up the impact of Watkins's bill in her locality as follows:

Fairfax County would not be able to accept land for schools, libraries, and other public facilities. Two examples of proffered land are the recently opened Oakton Library and the South County High School. Both sites were proffered by developers in rezoning negotiations. SB 768 would remove that opportunity, costing Fairfax County taxpayers millions of dollars in lost value.

She says that

a re-worked substitute bill, introduced on Monday, would allow voluntary proffers for portions of Reston and the Tyson’s area, but still does not provide the flexibility needed.

So, what about the other 94 counties, other than Fairfax? And, since a majority of Democrats took office after the last state senate election, I decided to look up the vote. I've highlighted and included emails for our local Senators and those from elsewhere who bolted their party in case you want to inquire why or commend/excoriate them. Most puzzling, given the case outlined by Penny are the Democrats defecting from NoVA and SW Virginia. With the 8 Republicans who voted Nay, this measure could have been roundly defeated, rather than passing so narrowly:

YEAS--Howell (D-Reston--email), Hurt, Lucas (D-Portmouth--email), Marsh (D-Richmond--email), Martin, McDougle, McEachin (D-Richmond--email), Miller, J.C. (D-Newport News--email), Norment, Northam (D-Norfolk--email) Puckett (D-Tazewell--email), Reynolds (D-Martinsville--email), Ruff, Saslaw (D-Springfield--email), Smith (R-Roanoke and parts of NRV--email), Stolle, Stosch, Wagner, Wampler, Watkins, Whipple (D-Arlington--email)--21.

NAYS--Barker, Blevins (R-Chesapeake--email), Colgan, Cuccinelli (R-Fairfax--email), Deeds, Edwards (D-Roanoke and parts of NRV--email), Hanger (R-Mount Solon--email), Herring, Houck, Locke, Miller, Y.B., Newman R-Forest--email), Obenshain (R-Harrisonburg--email), Petersen, Puller, Quayle (R-Suffolk--email), Stuart (R-Montross--email), Ticer, Vogel (R-Winchester--email)--19.

By way of a little history, the bill made it out of the Local Government Committee on 1/29 on a vote of 10-3-2

YEAS--Lucas, Marsh, Quayle, Martin, Hanger, Puller, Ruff, Obenshain, Smith, Stuart--10.

NAYS--Cuccinelli, Herring, Locke--3.

ABSTENTIONS--Ticer, Reynolds--2.

The Senate Finance Committee also approved the bill--its vote was 12-2-2

YEAS--Wampler, Stosch, Houck, Saslaw, Stolle, Quayle, Norment, Watkins, Marsh, Lucas, Whipple, Reynolds--12.

NAYS--Hanger, Miller, Y.B.--2.

ABSTENTIONS--Colgan, Howell--2.

To follow any piece of legislation, you can visit the
General Assembly's legislative information system. The Senate has a toll free number (888-892-6948) to express your views on any bill. A second toll-free number reaches both houses, while the General Assembly is in session: (800) 889-0229.