Follow Up Zoning Administrator Memorandum to BZA re RNGC 4-7-15

8/9/2019 Follow Up Zoning Administrator Memorandum to BZA re RNGC 4-7-15

1/6

C o u n t y

o f

F a i r f a x , V i r g i n i a

M E M O R A N D U M

R E E I V E D

D e p a r t m e n t o f P l a n n i n g Z o n i n g

DATE:

TO:

FROM:

SUBJECT:

REFERENCE:

April

7,2015

John F. Ribble, III, Chairman

Members,

Board

of

Zoning

Appeals

A P R

2 0 1 5

SPECIAL PERMIT &

VARIANCE BRANCH

Leslie

B.

Johnson, Zoning Administrator

Cathy S. Belgin, Senior Assistant to the Zoning Administrator

Further Information and Rebuttal

(s

Appeal A

2012-HM-020,

RN

Golf Management, LLC

11875 Sunrise Valley Drive and 2018 Soapstone Drive

Reston Sect. 42 Block 4A, Sect.

52 Block 4, and Sect. 44 Block 8

Tax Map:

17-4

((11)) 4A,

26-2 ((5)) 4,

26-2

((2)) 8

Zoning

District: PRC

On

January

21,

2015,

the Board of Zoning Appeals

(BZA)

held a public hearing for appeal

application A 2012-HM-020, which is an appeal of a determination that redevelopment

of

property in the

Planned

Residential

Community

( PRC )

District

from a golf

course to

residential

uses would require

an

amendment

to

the Reston

Master Plan,

which

is

a part of the

Fairfax County Comprehensive Plan, and Development Plan Amendment

approval

from

the

Board of Supervisors (Board). The BZA decision

was

deferred until

April

15, 2015,

with

submission deadlines

given

of

April 1, 2015, to provide the requested

follow

up

information,

and

April 7,

2015,

to

respond

to the

follow up information submitted

April

1,

2015.

Staffs

additional information and

rebuttal

was

provided

in a follow

up

submission to the

BZA dated

April 1, 2015. This Memorandum addresses the additional issues raised in the

appellant's

April

1, 2015, submission to the

BZA

and has been prepared with the assistance of the County

Attorney's

Office.

A copy of the previously provided staff report is available here for your

reference:

http://www.fairfaxcountv.gov/dpz/bza/appeals/appealstaffreports/a2012hm020.pdf.

L There

is

no Legislatively

Approved

Density Assigned to

the

Golf Course Property

for the Appellant to Implement

Distilled

to

its essence, the applicant

presents

the following argument construct: (1)

the

development

plan

presented

by County staff

is not stamped approved, even though

the

stamp

did not exist

until the

mid-1980s;

(2)

numerous and consistent development plans

produced by

Excellence *

Innovation

* Stewardship

Integrity * Teamwork* Public

Service

Department

of Planning

and Zoning

Zoning Administration Division

12055

Government

Center Parkway,

Suite

807

Fairfax, Virginia 22035-5505

Phone 703-324-1374 FAX 703-803-6372

www. fair

faxcounty.

gov/dpz/

EPARTMENT O

PLANNING

&Z O N I N G


2/6

Mr. John F.

Ribble,

III,

Chairman

Members,

Board

of

Zoning

Appeals

April 7, 2015

Page

2

the County

archivist must all

be

in error

because

they

only

reflect the

approval

of a

golf

course/open space on the subject property; (3) the applicant is unable to

produce

an approved

development

plan for

its

property

that

reflects any

designation other than

a golf

course/open

space; (4) therefore,

according

to

the

applicant,

no

development

plan

exists;

and

(5) therefore,

again according to the applicant, the permissible use and density of the golf

course

property

could

be

determined by

the

applicant's predecessor-in-title simply by

having

its engineer

insert

a note on

a

record plat, which is not

subject

to the legislative review of the Board of

Supervisors.

This erroneous

construct fails against

the

weight

of the

Zoning

Administrator's

analysis, which meticulously tracks

the original

zoning

approval

documents, applies

the

relevant

Zoning

Ordinance and

Comprehensive Plan provisions, is based upon development

plan

designations approved by the Board, and complies with relevant case law.

Further, the appellant has never

identified

legislative

approval

of

a

specific density or unit

count

for

residential development requirement of the Zoning Ordinance. This shortcoming is fatal

to

its contention that the

golf

course

could

be

so developed without

a

Comprehensive

Plan and

development plan

amendment.

As detailed below, the

appellant's

arguments find no support

in

law

or

fact.

The appellant asserts two

starkly contradictory

arguments: 1) that in

the

PRC District,

an

applicant need only designate

one of

the

five PRC

sub-categories and

then

any permitted

uses

in

that

sub-category

may be established

by-right; and 2) that the development plans relied upon

by

the Zoning

Administrator cannot be

the approved development plans because the

purported

as-

built development does

not

conform precisely

to

that shown on the development

plans.

1

If the

subject property was, as the appellant asserts, designated Residential and a golf course was one

of many permitted

uses

in the

Residential

sub-category,

then,

under

the

appellant's theory,

it

should

not matter

whether

the golf

course

was

developed with townhomes, garden apartments,

or tennis courts, as long as

those are still permitted

uses in the

Residential

sub-category.

This

theory is

not only

logically

inconsistent; it also

crumbles under the express provisions

of the

1971 Zoning Ordinance he provisions that

must be

applied to analyze the development plans

approved in that year.

2

Under the Purposes and

Intent

provisions

of the then-RPC District, the flexibility

afforded

to

development was intended

to

provide an opportunity

and

incentive for the developer

to strive

for excellence

in

physical, social and

economic planning. Zoning Ordinance § 30-2.2.2(A).

To that end, the developer was to demonstrate in all of his planning, design and development

the achievement of specific

objectives,

such as an

orderly

and

creative

arrangement of

all

land

1

As set forth below, the

GIS

data upon which

the

appellant relies is

subject to

numerous

disclaimers and is unreliable for the purpose used.

Further,

any actual inconsistencies could

be

attributable to the practice of shifting uses around prior

to

the Supreme Court's decision in

Krisnathevin v.

Bd.

of

Zoning

Appeals

of

Fairfax

County,

243 Va. 251, 414

S.E.2d 595 (1992);

see

Zon.

Adm. April

1,

2015, submission

atl2-13.

2

The appellant relies almost

entirely upon

the

current

Zoning Ordinance. Those provisions

do

not

apply retroactively to

analyze

the development plans

approved in

1971.


3/6

Mr.

John

F.

Ribble, III,

Chairman

Members, Board of

Zoning

Appeals

April

7,

2015

Page

3

uses

with respect to

each

other including residential.. .parks,

playgrounds,

recreational areas,

parking areas and other open

space. 30-2.2.2(A)(6).

To further

demonstrate

compliance

with these

objectives, development

plans were

required to

show the location and types of land uses, as well as the proposed densities of population in

residential areas and the location and nature

of recreational

facilities. 30-2.2.2(B)(2).

The

Board and the Planning Commission considered information,

including the

approximate

number and type

of

dwelling

units,

as part of the development plan. Id. (emphasis added.)

This requirement ensured that

the

overall

population

density would not

exceed

the limitation

established

by

Zoning

Ordinance

§ 30-2.2.2,

Column

3

(emphasis added),

which

provided that

[tjhree

residential

density areas shall

be

permitted in an

RPC

zone

in the

locations

shown

on

the development plan. Such density

areas shall be designated low, medium and high.

If permitted uses could be

implemented

at the whim of a developer within any area designated

Residential,

then

the PRC District

would cease to be

a

planned

district

and the

County would

simply have

to yield to the

developer's determination

of the

appropriate

density level

in

a

given area. Under this erroneous

construct, all

the developer

would have to do to usurp

the

legislative

role and

establish its desired

density

is file

a

record

plat with

a

note.

3

For that

reason,

the Board specified that

permitted

uses

in

any

residential district

could be

established only

in locations as shown on the approved development

plan subject to the

limitations

as noted,

with

the

noted

limitations

including the

requirement

for density

designations and an

approximate number

and

type

of

units.

See Zoning

Ordinance

§ 30-

2.2.2(B)(2)

and

Column

1.

Following approval

by

the Board

of

the development

plan,

no

significant modification could be made unless revisions in the plan were submitted for

approval

to

the Board of

Supervisors with

recommendation by

the Planning Commission in the

same manner as the original application

insofar

as

public

hearings [were]

concerned.

Zoning

Ordinance

§

30-2.2.2(B)(2).

The Board approved the

Reston Master

Plan and three development plans in 1971 as showing

the golf course

for use

as Golf Course,

Permanent

Open Space. The

Board

has

never

approved an amended development plan for the golf

course

and has never amended the Reston

Master Plan to show any other use of the golf course property. Ms. Artman's letter, which the

appellant mischaracterizes and attempts to

equate

to a legislative approval of

residential

uses,

does

not

alter

the

Board's

legislative

approval

of the development plans.

See Zon. Adm.

Subm.

at 13-14;

see also Ex.

21

to Rescue Reston's 4/1/15 Submission.

3

Per the Zoning

Administrator's

April 1

st

memorandum, the note

on

the subdivision plats does

not

allow

for

subdivision or modification upon submission of

a

mere

amended

plat t requires

legislative approval of an amended

development plan.


4/6

Mr. John

F.

Ribble,

III,

Chairman

Members,

Board of Zoning

Appeals

April 7,

2015

Page 4

II. The

Approved Development

Plans

Designate the

Subject

Property as

a

Golf

Course, Permanent Open Space

The

approved development

plans do

not show

the property

surrounding the

golf course

simply

as designated Residential

and

allow for

a

free-for-all of residential development;

instead, the

designations

on

the

approved

plans include

specific

densities, as well as types

and units of

residential

units, as

required

by Zoning Ordinance § 30-2.2.2. Compared with

those specific

designations of density and unit numbers,

the same

development plans show the

subject

property

as only Golf

Course,

Permanent Open

Space.

There are no other

notations

or

designations for the golf course parcels,

4

and they were not assigned any density or residential

designation. Thus,

residential

uses are not a

permitted

or by right use of the golf

course.

Zoning

Ordinance

§

30-2.2.2, Column 1(6)

(declaring

that

[ujses

in

an

RPC

District

shall

be

permissible only in those

areas

as designed on

the

development plan ).

The

Open Space designation

must

not

be ignored in this

analysis. According to

the

appellant,

the

five sub-category designations act as

an

arrow

to

direct a zoning applicant

to the

list of

permitted

or permissible

uses

available

to a property...

The Zoning

Administrator

does

not

dispute

that

certain designations on

a development plan

allow

for by

right

development of a

subset of permitted uses,

subject

to

any

noted

restrictions

or,

now,

proffers and subject to

conformance with all PRC plan standards. The

approved

development plans at issue in this

appeal, however, specifically designated the property only as Golf Course,

Permanent

Open

Space

hat designation

does

not confer the right to develop a subset of permitted uses,

other

than other open space or

recreational

uses. In fact, because the then-applicant was not seeking

approval of any other

permitted

uses,

there was

no reason to point an

arrow

to other such

uses by designating

the

golf course

as

any of

the sub-categories. Open

space was a

stand-alone,

defined

use

that, when not intended

to be developed with

other uses,

did

not

require a

separate

category.

5

See Zoning Ordinance § 30-2.2.2,

Column 9;

Zon. Adm. Sub. at 8. Moreover, even

if

the golf course

could be construed

as

having

been designated Residential, which

it

cannot,

the

appellant's argument still

falls

short:

residential density and

unit counts

had to be

shown

specifically

on

a

development

plan

to

be

implemented by right.

If the then-applicant went to the trouble of showing a golf course on the property

(possibly

to

avoid the

need

for a

separate approval),

surely it also would

have

identified the parcels with a

residential designation and

established

a

density

therefor if that had been

the

intent. According

to

the development plans and the contemporaneous staff reports, meeting minutes

and

advertisements,

it

was

never the

intent of

the then-applicant

or

the

Board to designate

the

golf

course

property

for residential

uses.

See Zon. Adm. Apr.

1, 2015, submission

at 2-7.

4

The appellant refers to a note in the staff report for RZ C-135, which purports

to

identify the

designation

of the

property on

the Reston

Plan

at

that time. (App. Subm.

at

7). The

staff report

reference

is incomplete

because the

then-current

Reston

Plan

showed the golf course.

5

The

1971

definition of

Open

Space did

not require the

space

to be available for entry

and

use by

residents or occupants of the

development. (See

Zon.

Adm.

Apr. 1,

2015,

Subm. at 8.)


5/6

Mr. John F.

Ribble, III,

Chairman

Members,

Board of Zoning Appeals

April 7,

2015

Page

5

Limiting an owner/developer

to uses

that

are

consistent

with

designations on

an approved

development plan conforms to the PRC regulations

in

the Zoning Ordinance;

it

does

not

amount

to

an

unlawful proffer.

(App.

Subm.

at 6.) If the

appellant

is not satisfied with the designations

on the

development

plans,

it can ask

the

Board

to change those designations on

an

amended

development

plan.

The

applicant

misstates the

Zoning Administrator's position,

She has not

declared that the owner is forever bound to use the property

as

a golf course, nor does

she

seek

to transform

the golf course

property into an

amenity

for public benefit.

Rather, she has

consistently stated only that if the

application property

is

to

be put

to any

use other

than a

golf

course,

that

redevelopment must

be

the subject

of a

comprehensive

plan

and

development plan

amendment applications.

III.

GIS Data

is Intended

for

General Information Only

On page 2 of the Appellant's Supplemental Statement the appellant references Attachment B

as

compellingly demonstrate[ing]

the Alleged Development

Plans

are

not consistent

with

what

actually has been constructed

on

these properties and

no

amendments to the Alleged

Development Plans approving such inconsistencies can

be found

i.e., the development

plans

actually

approved

cannot

be

found.

Attachment B

is an

11 sheet graphic

which

purports to overlay the

approved

development

plans on existing conditions (Fairfax County G.I.S.). The

problem

with

this approach

is

that Fairfax

County G.I.S.

does not reflect existing conditions and

in

fact, the agency

responsible

for

the

G.I.S.

data

clearly

states otherwise.

The Fairfax County G.I.S. open

data

website

contains the following disclaimer:

The information contained in these datasets is NOT

to

be

construed

or

used

as

a

legal

description . These

are

not survey

products.

Any

determination

of topography

or contours, or

any

depiction

of physical improvements,

property

lines or

boundaries

is

for

general

information only

and

shall

not

be used

for

the

design, modification,

or

construction of improvements

to real

property

or

for

floo

plain determination.

While Fairfax County strives to provide the best data possible,

it

does not

provide

any

guaranty

of accuracy or completeness

regarding

map information. Any errors or omissions

should

be

reported to the Fairfax County

Geographic

Information Systems

and Mapping Services Branch of the Department of Information

Technology.

[emphasis added].

Nowhere in the Appellant's statement is

there

an acknowledgement of these disclaimers;

in

fact,

as

noted

above,

the

information is

presented

as Alleged Development Plans

are

not

consistent


6/6

Mr.

John

F. Ribble, III, Chairman

Members, Board of Zoning Appeals

April 7,

2015

Page 6

with

what

actually

has been constructed on

these

properties The data

used to

create

Exhibit

B

is unreliable

for the

purpose used and therefore does not provide

an

accurate depiction of as-

built

conditions of the

property

to

compare

with the

Approved

Development

Plans. Staff

therefore

does

not

believe

the BZA

should

consider

Attachment B

in their decision-making

process

for

this appeal.

IV. Conclusion

For

all of the

reasons stated,

in

addition to

the information submitted on

April

1, 2015,

staff

respectfully recommends that

the

BZA uphold the

Zoning Administrator's determination

of

June 20,

2012,

and deny

the

appeal.

cc:

Sharon Bulova,

Chairman,

Board of

Supervisors

Catherine M. Hudgins, Supervisor, Hunter Mill District

Fred Selden,

Director,

Department of

Planning

and Zoning

Elizabeth

D.

Teare,

Deputy

County

Attorney

Laura S.

Gori, Assistant

County Attorney

Mavis E. Stanfield, Deputy Zoning Administrator for Appeals

Amy Muir, Appeals Coordinator

Francis

A. McDermott, Attorney and

Agent

for the

Appellant,

Hunton &

Williams

LLP,

1751

Pinnacle

Drive,

Suite

1700, McLean, Virginia

22102

RN Golf Management

LLC, 8300

Boone Boulevard,

Suite

350, Vienna,

Virginia

22182

(property

owner)

Documents

Follow Up Zoning Administrator Memorandum to BZA re RNGC 4-7-15