Column: By Right Development: Does It Work for Chesapeake Bay?

Column: By Right Development: Does It Work for Chesapeake Bay?

Time to reconsider public policy in the area of land use controls.

Part 2:

Our system of federal, state and local governance all have roles in providing public services for the citizenry. An 1886 court ruling in Iowa created limited county governmental powers. Judge Dillon, a writer on the subject of local governmental operations, distrusted local government due to the power and corruption of political “machines.” The relationship between local autonomy and state supremacy was more clearly defined by this ruling, which has become known as the Dillon Rule. His ruling gave local government only those powers that were specifically given to them by the state constitution or legislative statute. If there were any uncertainty of who had power or jurisdiction, it would be given to the state government and resolved in the judiciary.

Fairfax County operates under the urban county executive form of government and like other Virginia local governments, our county has limited powers. The Virginia Supreme Court and other Virginia courts apply the Dillon Rule to determine whether or not a local government has the legal authority to undertake a disputed action. Well-established county functions, like planning, zoning, and taxation have a number of statutes that give the county clear direction and authority to act, but in newer areas of concern governing land use such as storm water management and pollution controls in our local watersheds, the Dillon Rule is a constraint to innovative government responses concerning by right development not making public service improvements that can impact the Chesapeake Bay. Fairfax County has limited powers in areas and cannot take certain actions without appropriate action from the state.

Local and state elected officials need to take a comprehensive look at the powers granted to localities to regulate land development and its effects on public service improvements many of which directly impact the Bay and its tributaries. They should reconsider the extent of public policy in the area of land use controls where local government discretion should be broadened not limited. While Virginia has historically considered land use a local issue, there are significantly limited local controls on by right development to projects that are permitted under their current zoning and do not require any legislative action by the Board of Supervisors or the Board of Zoning Appeals. These administratively approved by right developments do not require public hearings thereby limiting measures to develop an adequate response to the pressures and costs to the environment under this form of development process.

Does eliminating loopholes that permit developers to keep in place outdated services that pollutes the environment add a financial burden that removes incentives to redevelop within Commercial Revitalization Districts (CRD’s) such as Richmond Highway? One option would be for the county to partner with developers in CRD’s and share the burden of costs to upgrade public services to current standards. The Fairfax County Department of Public Works and Environmental Services (DPWES) can only do watershed restoration projects on public land such as county parkland, school properties and other county owned land. They are not permitted to do projects on private land.

In areas undergoing redevelopment like Tysons Corner, the majority of the land use decisions are undergoing public hearings and developers are required and willing to include public service upgrades as development in this area is very profitable and adds to the attractive features that citizens desire in their communities. The developer builds the upgraded storm water infrastructure later maintained by DPWES and creates open space for park and recreation amenities that are transferred to the Fairfax County Park Authority (FCPA).

One developer in the Richmond Highway CRD proposing a residential project next to Spring Bank argues that his company is making a hundred million dollar investment in this community and that Fairfax County should redirect the enormous impact fees collected from their project straight back into the area they are redeveloping to pay for the community serving infrastructure rather than try and proffer these upgrades as part of the plan approval process. At present, impact fees go into a general fund where there is no vehicle to earmark such fees to be reinvested in the CRD districts where they originate to fix inadequate public service infrastructure.

Clearly, there is a disparity in the public serving infrastructure between designated CRD areas of the county and those areas like Tysons. I desire to hear candidates for county and state offices during this election season state their ideas and what they will do as representatives of the people to change a dynamic resulting in some areas of the county gaining public services while other areas remain lacking and unable to attain the same level of public services during their redevelopment.

The author is a Mount Vernon resident since 1981. A retired science educator from Prince George's County Public Schools, he taught K-12 science at the Howard B. Owens Science Center in Greenbelt, Md., as well as community college, university and adult education classes in natural history, physical geology, ecology and environmental science.