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Board of Zoning Appeals Overturns Planning Director's Determination on Waterfront Plan

City officials vow to appeal ruling to Circuit Court in dramatic turn of events.

In a four-to-two vote, members of the Alexandria Board of Zoning Appeals rejected Planning Director Faroll Hamer's determination that property owners could not force a supermajority vote for the waterfront plan.

In a four-to-two vote, members of the Alexandria Board of Zoning Appeals rejected Planning Director Faroll Hamer's determination that property owners could not force a supermajority vote for the waterfront plan. Photo by Michael Lee Pope.

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Planning Director Faroll Hamer and Deputy Planning Director Karl Moritz answer questions the waterfront plan.

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Opponents of the waterfront plan used a planimeter, seen here, to calculate which property owners were close enough to the upzoned properties to sign the protest petition.

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Attorney Roy Shannon speaks before City Council members during the public hearing on the waterfront, presenting an appeal to city officials and asking council members to stay the vote.

The waterfront plan is dead, at least for now.

That’s the consequence of a late-night vote of the Alexandria Board of Zoning Appeals, which overturned Planning Director Faroll Hamer’s determination in January that property owners near the waterfront could not force a supermajority vote pass the controversial upzoning. In a four-to-two vote after midnight, members approved a motion by Geoffrey Goodale rejecting the city’s argument that the protest petition process did not apply because the council vote was a text amendment rather than a map amendment. Even if it’s true that the vote was for a text amendment rather than a map amendment, Goodale’s motion added, the city was ignoring the plain language of its own code that allowed property owners to bring a challenge of either.

“The city has done a good job at obfuscating,” said Goodale as the witching hour approached. “But the plain meaning is the plain meaning.”

The turnabout was a dramatic development for opponents, who have not had much luck challenging the plan until now. Opposition to the small-area plan has been building over the course of the last year as Old Town residents say they are concerned about the future of their neighborhood when the density is nearly tripled compared to the buildings there now. But they lost the City Council vote, then they lost in court. Now that the Board of Zoning Appeals has rejected Hamer’s determination, city officials are on the defense. After the vote, City Attorney James Banks vowed to appeal the decision to the Circuit Court.

“I think there’s plenty of grounds for an appeal,” said Banks after conferring with his legal team.

CITY OFFICIALS tried to cast a distinction between a text amendment, which changes the language of a zoning ordinance, and a map amendment, which changes what kind of zoning is assigned to parcels on a map. But members of the Board of Zoning Appeals were critical of that distinction, which several said was being used as a ruse to prevent public participation. During the public hearing, several speakers said the city could use the same tactic in any planning process to prevent citizens from employing the protest petition process.

“I believe it’s a property rights state for all property owners,” said Katy Cannady, one of the strongest opponents of the plan, “not just land owners seeking to maximize profit on their property.”

City officials were also under the gun to explain why a section of the code that allows the protest petition for a text or map amendment didn’t apply. Board members clashed repeatedly over how to interpret one section, which a majority of board members felt allowed a challenge to either a map amendment or a text amendment. They said allowing the city to ignore the “plain language” of the code and using a technicality to dismiss the concerns of property owners was unreasonable. As more cases come forward, said vice chairman David Lantzy, city officials could deny any challenge by labeling everything a text amendment.

“That’s clearly not the intent of the zoning ordinance,” said Lantzy. “This has broken down badly.”