SUMMARY:  Local governments already have all the power they need to stop out-of-control growth with their zoning ordinances and comprehensive plans. The additional powers that some local officials want are related to an adequate public facilities ordinance. Such an ordinance would shift responsibility for stopping growth from elected officials to unelected bureaucrats or would allow elected officials to mandate cash proffers from developers that would at best cover a small share of the cost of growth. A coda to this article written in January 2006 looks at the assertion that that local governments need specific control measures not because they don't already have the authority to control growth, but because "they run the risk of a costly court challenge every time they reject a developer's request."

"I'll give your community more power to stop out-of-control development that increases traffic."
     - Television campaign ad of Governor-elect Tim Kaine

"The Virginia General Assembly members, who could give local governments more power to regulate growth, are others [of the congestion culprits.]"
     - Dr. Gridlock (Ron Shaffer) in the Washington Post, October 27, 2005, pg. FN 17.

Quotes of this nature are becoming more common. The problem is that they just don't reflect reality! Local governments already have all the power they need to stop out-of-control growth with their zoning ordinances and comprehensive plans.

First, a quick review of zoning and planning.

Every piece of property is zoned for a particular use at a particular density. R-1 zoning is for residences, one per acre. R-4 is four residences per acre. PDH-12 is Planned Development, Housing at 12 residences per acre. PRM is Planned Residential, Mixed use at much higher densities. If you own three acres of property now zoned R-3, you may build nine homes on that property, all other things being equal (other things including street frontage requirements, setback requirements, environmental restrictions, etc.). Local Government cannot reduce a property owner's zoning. It can, however, increase it if it wants to.

The Comprehensive Plan is the County's vision of how property should be utilized in the future. A planning designation for a piece of land does not convey any right to the property owner. The County can revise its plan, down-planning the property, up-planning it, or changing its proposed use entirely. However, the plan cannot reduce or change the existing zoning that belongs to the owner by right. The Comprehensive Plan also includes a transportation element that spells out needed roads and road improvements so that growth does not occur in a vacuum.

Plan designation for properties can be changed during periodic reviews or by special out-of-turn plan amendments. Changes under either method must be approved by the Planning Commission and then the Board of Supervisors.

Here's the key to all this. Out-of-control growth is not being caused by one house here or two houses there being built on formerly empty lots. It is not caused by an owner of four acres zoned R-1 exercising his or her right to subdivide and build four houses where formerly one existed. Out-of-control growth is caused by large developments for which re-zoning is needed. If that four acres is re-zoned from R-1 to PDH-20, you've gone from one house to 80. If you re-zone to PRM, you may get 300 condos plus commercial office and retail space. That's what's causing out-of-control growth and traffic gridlock. All of the major development initiatives in Fairfax County require re-zoning — Tysons, Vienna Metro West, and a host of smaller properties like Groveton Heights and Kings Crossing on Richmond Highway — all of them!

The Planning Commission and Board of Supervisors could simply just say no to the planning and zoning changes that are required to make these developments possible. They are completely within their right to say no. There is no state law or court decision that would prevent it. They wouldn't even have to give an absolute no. They could note that needed transportation improvements envisioned by the Comprehensive Plan are not in place and tell the developer that they welcome an opportunity to reconsider when the transportation and education infrastructure needed to support the development gets built. An example of how this was done in the late 1980s can be seen in Carl Sell's article "The Road to Fort Belvoir and Its EPG" on this site.

So exactly what more are local governments supposed to need if they can now stop development by simply refusing to change the zoning? One suggestion according to the Washington Post is an "adequate public facilities" law that would allow localities to "defer the approval of subdivision site plans" if local authorities determine that the infrastructure isn't there to support the new subdivision.

This is attempting to close the barn door after the horse has gone. A developer may only formally submit the site plan after the zoning has been changed to accommodate the development. What the above proposal does is shift the burden of saying no from the elected supervisors (who approve the zoning change) to the unelected bureaucrats of the Department of Public Works and Environmental Services who must then take the heat from citizens, developers, or both.

Alternatively, adequate public facilities may be a smokescreen for extorting (mandatory or voluntary) cash proffers from developers to go toward upgrading the existing public facilities. The roads and schools aren't adequate, but if you give us money, we'll say you're doing your share and let you build.

The problems with this approach are mainly two. First, the cost of the proffers will get passed on to the home buyers, making houses even less affordable. Second, so much money is needed to build new roads and schools, or improve existing ones, that no amount of builder cash will cover the cost, at least not if the homes are to be sold below a price only Bill Gates could afford. These proffers are like buying an expensive car and saving $1000. Sure, you've saved $1000, but you've spent $59,000. And every year that car will need gas, repairs, and insurance, quickly using up the small amount of the price reduction.

Forward Fairfax believes that shifting the responsibility or blame for out-of-control growth to the state completely misses the fact that local officials have abdicated their responsibility to just say no to growth that clogs our highways and overcrowds our schools. Local governments don't need more power. They need more backbone.

Coda, January 2006

A recent Washington Post article suggests that local governments need specific control measures not because they don't already have the authority to control growth, but because "they run the risk of a costly court challenge every time they reject a developer's request." (see "Kaine's Proposal Might Embolden Local Leaders"). There is a grain of truth to this claim, but only a small one.

The courts have been very clear that the U.S. and Virginia constitutions prohibit the taking of private property without just compensation. This includes regulatory taking, which may occur when government makes a regulation, such as a zoning change, that limits previously permissible use of a property. The prime example of this is down-zoning. For example, re-zoning a property zoned R-4 (four dwelling units per acre) to R-1 (one dwelling unit per acre) might (see below) constitute a taking because it could reduce the value of that property. However, refusing to up-zone a property (for example, going from R-4 to R-6) would not constitute a taking under almost all circumstances as no vested right to that new zoning exists.

There are two exceptions to this. First, the Virginia Code spells out in § 15.2-2307 that a vested right exists when a property owner "obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project." In other words, if the governing body has made a legal committment to the property owner, it must honor it.

Second, the Fourteenth Amendment to the U.S. Constitution requires equal protection for all citizens. When applied to land use, this means that localities must treat similarly situated properties similarly, and discrimination in a zoning decision is impermissible if it is unjustified. For example, in 1975 in Board of Supervisors of Fairfax County v. Allman, the Virginia Supreme Court found that the Board acted discriminatorily when it denied the plaintiffs' request for an upzoning where, both before and after the denial, it approved up-zonings to others owning property adjoining or near the plaintiffs' land, even though those other up-zonings would have the same, or even greater, impact. This 30 year-old case is the source of fears such as the one quoted above. However, Virginia courts have since ruled that justification may be found if there is a rational basis for the action alleged to be discriminatory (see Board of Supervisors of Fairfax County v. McDonald's Corporation from 2001). In practice, it is very difficult for a property owner to prove unjustified discrimination, particularly if the denial is supported by the locality's comprehensive plan. We know of no cases where refusal to up-zone was overturned (or even challenged) in court when the County's comprehensive plan did not support such up-zoning.

In fact, even down-zoning without compensation is sometimes permissible. In July 1982, the Fairfax County Board of Supervisors voted to re-zone 41,000 of the 64,500 acres adjacent to the Occoquan Reservoir from R-1 to RC (one dwelling unit per five acres) to protect the watershed and the public water supply. This action survived property owner challenge in court (see Aldre Properties, Inc. v. Fairfax County Board of Supervisors from 1985 in the circuit court of Fairfax County). The recent down-zoning of much of Loudoun County was overturned in court in March 2005 not because of a vested right, a significant affirmative government act, or discriminatory zoning, but rather on the issue of due process in passing the new zoning; the Loudoun County government had not given proper public notice of hearings before it made its decision.

The key point here is that refusal to up-zone by local authorities is extremely difficult to challenge in court. The provisions of an existing comprehensive plan (mandated by the Code of Virginia) offer a strong rationale for refusing to up-zone. And refusal to up-zone is a strategy that will control growth in counties such as Fairfax where most land is already zoned for low and medium density and where farms and other empty or nearly empty parcels no longer exist. For counties such as Prince William and Loudoun that desire to preserve low density rural areas, even down-zoning, if carefully crafted to accord with legal precedent, is not necessarily vulnerable. The key here is a good comprehensive plan that logically lays out a locality's future in accord with a vision of a suburban (or rural) environment where traffic gridlock does not prevail.

If, on the other hand, a locality is the wild wild west where the comprehensive plan is routinely changed to allow developers to build anything they want anywhere they want, and that locality has no coherent strategy for the future use of its land, its officials are right to fear legal challenges from developers on the basis of unequal treatment – and to fear the ire of its citizens.

Copyright Forward Fairfax and Doug Boulter, 2006