In Town of Occoquan v. Elm Street Development, Inc., the Virginia Supreme Court affirmed the ruling of the Prince William County Circuit Court that a locality may not require a special use permit for steep slopes for development that is characterized as “by-right” in the locality’s zoning ordinance.

Occoquan’s zoning ordinance required a special use permit for any development on property with slopes greater than 20%. Elm Street sought such a special use permit, but was denied and therefore could not construct its proposed townhomes. Under the zoning ordinance the development of townhouses was by-right on R-3 zoned property. Elm Street argued, and the Supreme Court agreed, that the requirement for the special use permit was explicitly barred by § 15.2-2288.1 of the Code of Virginia, which provides that “[n]o local ordinance shall require as a condition of approval of a subdivision plat … or issuance of a building permit, that a [special use permit] be obtained for the development … of residential dwellings … permitted by right under the local zoning ordinance.” The Court found that the case fell squarely within the statute and that the Town could not “permit this development by right and simultaneously require an SUP as a condition of development on the property.”

The Court also disagreed with the Town’s claim that the ordinance was valid under its power to use zoning to protect state waters as granted by the Chesapeake Bay Preservation Act. The Court ruled that the specific restrictions within § 15.2-2288.1 prevailed over the general grant of authority contained in the Bay Act. The case, the Court concluded, demonstrated precisely why § 15.2-2288.1 was enacted: to prevent a locality from using a special use permit requirement to, in the Court’s own words, “politicize” a ministerial decision.

A locality may regulate steep slope development, but such regulations must be accomplished through standardized development requirements applicable to all proposals, but it may not impose a legislative prerequisite to such development.

Key Takeaways:

• The Court did not read the language of § 15.2288.1 restrictively, and held that an ordinance requiring an SUP for any “clearing, land disturbance, or development” is subject to the limitations of the statute, which applies to conditions of approval for subdivision plats, site plans, plans of development, and issuance of building permits.
• The Court expressly said that the “Town cannot permit this development by right and simultaneously require an SUP as a condition of development on the property. Zoning is a political decision; once the Town makes that political decision, approval of proposed site plans should be ministerial. By requiring an SUP, the Town has politicized should be a ministerial decision.”
• The specific limitations in § 15.2288.1 prevail over the general authority to use zoning to protect state waters under the Chesapeake Bay Preservation Act.

Fairfax County’s Planning Commission Environment Committee has been discussing proposed updates to the County’s Green Building Policy since November 2009. Walsh Colucci attended and has actively participated in the discussion at these meetings since the Committee’s inception. On July 7, 2012, the Environment Committee completed their detailed review of the “Green Building Policy Review: Comment Compilation and Staff Response” document, which has been the subject of discussion at each Planning Commission Environment Committee meeting since November 8, 2011. Discussions have now reached a point where implementation of the Proposed Green Building Policy will be deliberated.

The Environment Committee’s meetings on September 13 and October 4 should be critical in in their formation of Green Building Policy implementation recommendations. It is expected that their recommendation for Green Building Certification will extend outside of the current “Areas of Expectation”, which have historically included the Tysons Corner Urban Center, Suburban Centers, Community Business Centers and Transit Station Areas. In these Areas of Expectation, escrows to ensure compliance with Green Building Commitments are typically included in proffer commitments and development conditions.

There has been some thought by the Committee that commitments to Green Building Certification should be made by developers outside of these current Areas of Expectation, but that escrows as an enforcement mechanism may not always be the best method to ensure Green Building Certification in those outlying areas. Staff has expressed concerns that proffers and development conditions must be enforceable, that there must be a trigger for review, and that without a penalty the commitment may not be fulfilled. The Environment Committee and Staff will find suggestions from the development community regarding this implementation policy helpful. If you have a suggestion, please consider attending these meetings or contacting Inda Stagg at istagg@arl.thelandlawyers.com with your ideas so that she can pass those ideas on to the Environment Committee and staff.

A copy of the “Green Building Policy Review – Comment Compilation and Staff Response” can be located on the Fairfax County’s Website at:
www.fairfaxcounty.gov/planning/gb_policy_review_compilation110811.pdf. This document presents a matrix of the existing Comprehensive Plan Green Building Policy text, the strawman proposed text, comments that were provided to the Environment Committee in response to the strawman proposal, and Staff’s response to those comments. It is anticipated that a clean “Response Document” will be available sometime in October or November.

The Environment Committee’s upcoming meetings are scheduled for September 13, 2012 and October 4, 2012 in the Fairfax County Board Room, which is located through the double doors to the right of the dais in the Main Auditorium of the Fairfax County Government Center. The address of the Fairfax County Government Center is 12000 Government Center Parkway, Fairfax, Virginia. Currently the Environment Committee meetings are scheduled for 6:45 p.m.; however, they may be rescheduled for 7:00 p.m.

The Loudoun County Board of Supervisors voted 5-4 on July 3rd to affirm its support for Phase 2 of the Silver Line (Yes: York, Buona, Letourneau, Reid, and Williams; No: Clarke, Delgaudio, Higgins, and Volpe). Phase 2 of the Silver Line will extend from Wiehle Avenue in Reston to the Route 772 station in Loudoun County and is planned for completion in 2017. The Phase 2 stations include Reston Parkway, Herndon-Monroe, and Route 28 in Fairfax County and Dulles Airport, Route 606, and Route 772 in Loudoun County (the names of these stations will likely be altered in the future). While the Board decided to remain committed to the July 19, 2007 “Agreement to Fund the Capital Cost of Construction of Metrorail in the Dulles Corridor”, it remains to be seen how the Board will fund its approximately $269 million share of the Phase 2 capital expenditure.

Just prior to the Silver Line vote, the Board voted 7-2 (Delgaudio and Higgins opposed) to explore funding the Silver Line capital expense through the establishment of three tax districts located in the vicinity of the Loudoun County rail stations. The three tax districts would consist of a rail service tax district, a station development tax district, and an airport station tax district. The Board has stipulated that the proposed tax districts shall not exceed $0.20/$100 of assessed value on any property. The tax districts item will be brought before the Board at a public hearing no later than November 1, 2012. The tax districts will take effect on January 1, 2013.

The tax districts encompass primarily commercial properties in the immediate vicinity of the rail stations (see map below). The tax districts proposal was crafted by Supervisor Shawn Williams (Broad Run) as an alternative to a previously proposed, but since dismissed, countywide tax of all properties. The impact of this proposed funding mechanism carries with it a potentially significant tax burden on the properties located within the proposed tax districts, especially those properties that are already located within the existing Route 28 tax district. It remains to be seen if the properties proposed to be impacted with the additional tax burden will be part of an area plan process, similar to the Tysons Corner and ongoing Reston area plan processes, which would permit additional density on certain properties to help compensate for the additional tax burden. Additional details related to the proposed tax districts and any potential area plan processes will become available as the review process progresses over the next few months.

Pete Dolan recently obtained rezoning and Comprehensive Plan amendment approvals for the Villages of Piedmont project in Prince William County. The Property, comprised of approximately 493 acres, is located south of I-66, at the intersection of Route 15 and Market Ridge Boulevard. The project’s unique cluster design includes 393 new homes (including single family detached homes and townhomes), a new community pool and recreational facilities, and an impressive open space commitment – the permanent conservation of more than 380 acres around the perimeter of the community that will be preserved as natural open space and be open to the public for passive recreation. Within the natural open space, the applicant will construct over 5 miles of natural trails, observation areas and educational signage that will showcase the environmental and historic features of the area

The applicant and owner’s representative, Mr. Scott Plein, envisions the project as a model for preservation-oriented land planning that will add value to the Villages of Piedmont community. The project also includes a commitment to jump start the design and construction of the long-planned widening of Rt. 15 to four lanes, south of I-66.

The Arlington County Board has approved changes to its Green Building Incentive program to encourage greater energy efficiency in buildings in the county. Arlington’s focus on energy efficiency could result in a lower level of LEED certification. Bonus density has also been revised.

Arlington County has prided itself on its effort to create a more sustainable built environment. The County first adopted a Green Building Incentive Program in 1999 to encourage buildings to pursue LEED Certification in exchange for bonus density. The program was expanded in 2003 and amended again in 2009.

The Incentive Program was revised in 2009 to allow for requests for bonus density for the various levels of LEED certification listed below.

LEED Level	Commercial	Residential
Certified	0.05 FAR	0.10 FAR
Silver	0.15 FAR	0.20 FAR
Gold	0.35 FAR	0.40 FAR
Platinum	0.45 FAR	0.50 FAR

It is the view of the County that buildings that achieve LEED Certification are not necessarily achieving levels of energy efficiency that the County desires. In an effort to encourage more energy efficient buildings, the County has modified the levels of bonus density available and now requires a minimum amount of energy efficiency in order to receive bonus density. The County’s goal is to have the focus of the green building measures and investment for any particular project be in optimizing energy performance, even if that results in a lower level of LEED certification than may be able to be achieved otherwise for the project.

The Green Building Incentive Program requires a minimum level of energy savings for all projects that wish to participate. The Minimum Energy Savings (MES) is measured as additional savings beyond the current ASHRAE standards and equates to a particular number of points earned under LEED EA Credit 1 – Optimize Energy Performance of LEED version 2009.

Since early 2011, County planning staff has been conducting public outreach and working with consultants to draft a Sign Ordinance that can be administratively regulated by codifying current County Board practices. The proposed ordinance may significantly impact the approval of future signage, most notably in the areas of roof-top signage, lighting and electronic communication.

In December 2010, the County Board approved a work plan for updating the Zoning Ordinance. The first phase of the work plan called for a comprehensive revision to the Sign Ordinance (Section 34 of the Zoning Ordinance). Since early 2011, County planning staff has been conducting public outreach and working with consultants with the intent of drafting a Sign Ordinance that can be administratively regulated by codifying current County Board practices. The revised Sign Ordinance is currently slated to be before the County Board at their July 2012 meeting.

In contrast to the present Special Exception process, staff has endeavored to create regulations to allow all sign related applications to be entirely administratively reviewed and approved, without the need for Board review and action. As currently drafted, the revised Ordinance would limit Special Exception requests to only the following modifications: reallocation of sign area among sign types, placement standards and hours of illumination. In addition to the approval process, other significant changes include: new methodology for the measurement of rooftop and wall signage, restrictions on lighting standards and proposed limitations on signs facing residential zoning districts.

Despite the stated objective to codify current approval practice, the proposed Sign Ordinance has significant implications on the approval of future signage, most notably in the areas of rooftop signage, lighting, and electronic communication.

Acting on then Chairman Zimmerman’s small business initiative, the County Board approved minor changes to the Sign Ordinance in December 2011 to allow flexibility for temporary sidewalk and umbrella signage. The December 2011 revisions were intended to be temporary revisions, as the proposed Sign Ordinance will be presented to the County Board in July 2012 with a staff recommendation to approve. In conjunction with their recommendation, staff will propose several alternatives for certain sign types, from which the County Board will choose which to approve. For example, in the most recent draft of the proposed Sign Ordinance, staff has suggested four alternatives regarding the standards for lighted signs. These four alternatives for further restricting lighted signs are as follows:

[OPTION A: no additional restrictions]
Under no circumstances shall a sign placed above a height of 40 feet and directly facing the monumental core, George Washington Parkway or Arlington Cemetery be lighted between midnight and 8 am.

[OPTION B: reduced hours of illumination]
Under no circumstances shall a sign placed above a height of 40 feet and directly facing the monumental core, George Washington Parkway or Arlington Cemetery be lighted between 10 pm and 8 am.

[OPTION C: no lighted signs]
Under no circumstances shall a sign placed above a height of 40 feet and directly facing the monumental core, George Washington Parkway or Arlington Cemetery be lighted.

[OPTION D: no signs above 40 feet]
Under no circumstances shall a sign be placed above a height of 40 feet and directly facing the monumental core, George Washington Parkway or Arlington Cemetery.

Similar alternatives may be presented for illumination levels and commercial signage adjacent to residential zoning districts.

Throughout the drafting and review process, staff has received a number of comments regarding the proposed Sign Ordinance. The most significant comments have addressed the entirely administrative process, rooftop signage and illumination. On the topic of administrative approval, most agree that administrative approval of signage would provide a more streamlined and certain process for applicants, but also remove the flexibility to encourage new sign proposals. With a narrow opportunity for modifications, both the public and industry have opined that meaningful review of worthy proposals will be stymied. During a joint Planning Commission and County Board work session on the proposed Sign Ordinance, several Board members expressed their desire to allow a small percentage of sign requests to still come before the Board. However, it remains to be seen whether the proposed Sign Ordinance, as currently drafted, will fulfill the Board’s desire.

CLICK HERE to read the most recent draft of the proposed Sign Ordinance.
CLICK HERE to read the current Sign Ordinance.

On November 30, 2010, the Leesburg Town Council voted to approve Ordinance No. 2010-O-025 to revise the Review and Inspection Fee Schedule referenced in the Subdivision and Land Development regulations and the Zoning Ordinance.

View full ordinance