Real estate developers put Arlington's affordable housing guidelines on trial this week in District Court with a suit that claims the county has no authority to require developers to dedicate a portion of new construction to affordable housing or make a financial contribution.
"This case is not about affordable housing," said William Dolan, the plaintiff’s attorney, last Wednesday. "It's about authority."
The suit was filed by Kansas-Lincoln, LC, a company that owns a long strip of land in the Rosslyn to Ballston corridor. Kansas-Lincoln and its partners in the case, the Apartment and Office Building Association and the Northern Virginia Apartment Association, are asking Judge Joanne Alper for a "declaratory judgment," and asks that the guidelines be removed from county regulations.
"Kansas-Lincoln wants to strike a death blow to the way development in Arlington County has been done for almost 40 years," said County Attorney Stephen MacIsaac.
Arlington's County Board adopted a set of guidelines on April 27, 2004, requiring developers in Metro corridors to set aside 10 percent of their new construction for affordable housing. The guidelines only apply to new developments or renovations on existing buildings that would require the county's permission. If a developer prefers not to build housing units, the guidelines state, he can make a contribution to the county’s affordable housing fund. But without new housing or a donation, developers cannot win the County Board's approval to begin construction.
The suit, filed in June, states these rules exceed the scope of the county's power under state law. It continues by saying developers are not compensated, as required under state law, for the economic loss sustained by the creation of new affordable housing units.
"The General Assembly hasn't conferred the county with the authority to require contributions," Dolan said.
Judge Alper heard testimony from Gary Kirkbride Wednesday, a real estate development consultant with Dewberry, a Manassas-based development firm. Kirkbride, who also served for 13 years in the county's planning department, said the county board denies permission for new land developments if the proposed projects fail to meet the housing guidelines or its General Land Use Plan. Both documents are designed to be advisory, he said, but the county will deny its approval to applicants whose plans do not fall in line with them.
"There isn't any voluntary choice on the part of the applicant," Kirkbride said. "The donation is either paid or a deferral is made or there will be talk about the permit being denied."
According to Kirkbride the county's formula for calculating how much a developer will donate its housing fund works out to roughly one percent of construction costs for residential building and two percent, or about $4 per square foot, for commercial projects. But, he added, there are some inconsistencies in the county's methods.
"The percentages are always the same but what varies somewhat is what the county will count as part of construction costs."
If Judge Alpers finds in favor of Kansas-Lincoln and its cohorts, other contributions paid by developers into the county's accounts may be called into question.
"In those cases where the need for affordable housing is substantially generated by the development of a particular parcel of property, that need can only be addressed within the authority granted by the General Assembly to the county," the suit reads. "The county requires developers to also contribute to public art, off-site utility under-grounding and to promote mass transit, all of which are needs not generated by the development and are also illegal conditions."
Advocates of the county's guidelines fired back at developers with an amicus brief released Tuesday to support the county's housing regulations. Affordable housing is a long-standing issue for many activists in Arlington who believe the encroachment of high-rise developments is pricing much of the county's poor and middle class out of their neighborhoods. The United Way has already designated affordable housing as the number one community need in Arlington.
"Affordable housing is dissipating at an alarming rate," said Kristin Carbone, spokesperson for Buyers and Renters Arlington Voice (Bravo). "This measure (the housing guidelines) helps us be a community that puts people over profits."
Charles Rinker, president of the Arlington New Directions Coalition, who helped push for the creation of the guidelines, said the community's need outweighs the inconveniences the regulations cause for developers.
"Given that we have such a crisis here in Arlington, they are reasonable," he said. "The county is well within its rights and well within the law."
Judge Alpers considered final arguements in the case Friday and is expected to hand down a decision next week.