Planning Commission Overrides Legal Opinion

Planning Commission Overrides Legal Opinion

Late information from staff leads to elongated debate.

After nearly 90 minutes of debate over what constitutes the difference between a townhouse and a condominium, pitting the Department of Planning and Zoning staff and City Attorney against the Planning Commission and an attorney for a potential developer, the commission approved a site plan characterized by staff as having "fundamental site layout and design flaws."

At question during the Jan. 6 commission meeting was a proposal by Stanley Martin Companies, Inc., of Reston to develop the approximate four-acre site at the intersection of North Beauregard and North Armistead streets with 42 "townhouse-style" condominiums. Central to the debate was whether they were condominiums or townhouses and whether or not the site plan met the "minimum" requirement of the zoning ordinance.

HAVING BEEN DEFERRED from the December meeting, due to the length of that meeting and the late hour, several commissioners expressed surprise that they were given a new list of agreed to conditions just prior to this month's meeting. Those conditions brought the proposal into minimal compliance, according to Eileen Fogarty, director, Planning and Zoning Department.

"The applicant met with staff over the last month and they have made the changes you have before you tonight. We feel these do meet the minimal requirements," Fogarty said.

Commission Vice Chairman Richard Leibach pointed out, "We have not had the benefit of this new staff report until tonight." He was joined by Commissioner Jesse Jennings who asked, "Are we more concerned with minimal requirements than preference?"

The original staff report to the commission, stated, "The proposal raises numerous fundamental concerns and does not meet the minimum requirements of the Zoning Ordinance. These issues would usually be resolved with the applicant through the conceptual review process; however, ... the applicant has not been willing to make any substantive changes ... that would result in the loss of any units."

This comment in the staff report was made prior to the new agreements. However, staff had recommended approval in its original report based on "compliance with all applicable codes and ordinances" and adherence to some 60-plus conditions. This approval recommendation was made even though staff raised objections to numerous aspects of the proposal.

City Attorney Ignacio Pessoa said, "What you had in the original report was the conclusion that it (the site plan) didn't meet the minimum requirements. If that is so, the commission has no choice but to deny."

UNDER QUESTIONING from commission members, Pessoa pointed out that the "zoning ordinance was written to determine that these types of units would be defined as townhouse units" not condominiums. The difference impacts lot size and other open space requirements.

When pressed by Commissioner H. Stewart Dunn, Jr., as to whether or not the application met the zoning requirements, Pessoa answered that, in his opinion, it did not. "Under Virginia law you don't look at the type of ownership, you look at the use," Pessoa said.

That is when M. Catharine Puskar, attorney representing the developers, said, "We asked these very questions at the start of this entire process. I am somewhat thrown by what the City Attorney has said. He has stated a different interpretation than ever stated before.

"There is a benefit to townhouse-style condos. I would request you not change past policy on this application. The City Attorney's interpretation should have been given to us months ago. We relied on our conversations with staff and I'm thrown by these conversations tonight."

When it came time to hear from public speakers, they also expressed the opinion that the proposed units were condominiums and not townhouses, given the usual interpretation of those two distinctions. "These are townhouses, not condominiums. Just because we have been overly eager in the past, there's no excuse to keep doing that," Poul Hertel said.

"If you choose to approve this plan as presented here tonight you will have started a trend to reduce open space planning to file cabinet status. My preference would be to reject this proposal. The best outcome would be for the developers to completely redesign this project," Katy Canady said.

"We think this is a much better plan than you would get with apartments," Puskar said. The density limit for the site is 102 apartment units which would also generate considerably more traffic, according to the staff report.

HOWEVER, STAFF also noted, "a development proposal has never been submitted demonstrating that 102 apartments could feasibly be constructed on the site and comply with all zoning requirements."

A study based on an 102-apartment complex would generate a 2.6 percent traffic increase in the area whereas the proposed townhouse/condominium development would result in a projected increase of 1.4 percent.

During a October 28, 2004 community-wide meeting of various condominium associations in the area, "Neighbors ... were generally in favor of the project (as proposed), citing anticipated increased property values and the lower traffic demand of the proposal as compared to a larger apartment development," according to staff.

In order to strike a compromise, Commissioner John Komoroske proposed that the developers reduce their planned development by four thereby creating more open space. If they did not agree then he proposed that the commission vote to deny the proposal as presented.

Referring to the possibility of a much larger apartment complex, Commissioner Donna Fossum said, "I shudder to think what can be built there by-right. I think Commissioner Komoroski's proposal is the best solution." She was joined in that appraisal by Commissioner J. Lawrence Robinson who said, "I don't know what to do here legally. But, I do like John's proposal."

After a break to allow the applicant and planning staff to discuss the suggested reduction in the number of units and parking spaces, Dunn asked Puskar if the applicant will appeal the vote of the commission in order to maintain the 42 units. Her answer was, "It is in your discretion" to impose whatever conditions they wish.

Commission Chairman Eric Wagner said, "It's a reasonable compromise." But this did not sway Leibach who was the only commissioner to vote in the negative. It passed 6 to 1.

THE ONLY OTHER matter on the action agenda was a request by Las Tapas Restaurant, 710 King St., to extend its closing time from the present 1 a.m. to 1:30 a.m. on Friday and Saturday with all patrons leaving by 2 a.m. No change was requested for Sunday through Thursday hours which calls for closing by 11 p.m.

According to staff, the applicant was requesting the extension primarily "to accommodate the weekend demand for orders after 1 a.m." In recommending denial, staff said, "The applicant's request ... is inconsistent with all recent approvals for closing hours on King Street, and would establish a precedent for future special use permits for later hours." The vote was unanimous to deny.

Prior to commencing the meeting, Wagner read a proclamation from the commission expressing "its deep gratitude and appreciation to Philip Sunderland for his service to the Planning Commission and to the Citizens of the City of Alexandria" and extending "its best wishes for all future endeavors ...." Sunderland had worked with the commission throughout his 20 year career as city attorney and city manager.