Letter: Violate 5th Amendment?

Letter: Violate 5th Amendment?

Letter to the Editor

To the Editor:

I have appreciated the opportunity to share my opinions with Gazette readers in hundreds of letters to the editor. Out of respect for Gazette readers, I make best efforts to ensure that the factual underpinnings of my opinions are accurate, complete and documented. If the Gazette held other frequent contributors to the same standard, perhaps I wouldn’t find it necessary to submit so many letters and articles for publication.

This brings me to Martin Tillett’s submission published in last week’s Gazette concerning “by right” development. Therein, he urges Fairfax County to place restrictions on what can now be developed “by right.” A private property owner can build “by right” anything that complies with the current Comprehensive Plan, Zoning Ordinance, Chesapeake Bay Preservation Ordinance, storm water laws and other laws, regulations and ordinances. Any proposed development that doesn’t comply with those laws, regulations and ordinances will require a variance, special exception, special permit and/or other approval(s), triggering public hearings before the Board of Zoning Appeals (BZA), Planning Commision and/or Board of Supervisors, as well as the need to negotiate proffers.

The Board of Supervisors proceeds with extreme care when it proposes introducing new restrictions on “by right” development. The reason is quite simple: the 5th Amendment to the Constitution forbids taking private property for public use “without just compensation." When a governmental entity restricts the use of private property, this can comprise such a “taking.” Mr. Tillett decries the development of a Wal-Mart by right on the Kings Crossing property, noting that the property owner was not required to enhance the existing storm water controls and suggesting such a requirement should have been imposed. He correctly points out that rainwater draining from the property has severely eroded and polluted Quander Brook in the Fairchild property, a property donated by the Fairchild family with the intent of creating a park.

What Mr. Tillett neglects to state is that the developer who wanted to develop the Kings Crossing Town Center had proffered to fully upgrade the storm water controls on its property and spend up to $500,000 to restore Quander Brook. When the unreasonable demands of Mr. Tillett and others caused inordinate delays in commencement of the town center project, the downturn in the economy caused the developer to pull out. With their departure went the storm water controls and stream restoration paid for by the developer. The very next month, Mr. Tillett asked the MVCCA to pass a resolution in which the Board of Supervisors (translated: taxpayers) was asked to fund what the developer had proffered. In the height of chutzpah, the MVCCA dutifully complied.

When Supervisor Hyland got wind of the proposal to develop a Wal-Mart store on the property, he tried to stop it by convincing the Board of Supervisors to pass a “big box” ordinance requiring property owners to obtain a special exception for any big box store greater than 80,000 square feet in size. The ordinance surprisingly passed the County Attorney’s 5th Amendment analysis. That ordinance is why the Wal-Mart store subtends 79,000 square feet.

Mr. Tillett also criticizes the Dillon Rule which restricts localities from enacting laws not expressly authorized by the state legislature. Thank heaven localities are protected by the Dillon Rule from the Martin Tilletts of our Commonwealth. Maryland has no Dillon Rule and every time a county border is crossed, many laws change. The uniformity of laws, county by county, is a blessing. Contrary to Mr. Tillett’s assertion, it is not “police power” that localities employ to regulate development activities. Rather, it is enactment and enforcement of local laws, regulations and ordinances as authorized by the state legislature. Elections have consequences. This is one of them.

Mr. Tillett is suffering from the fruits of his own activism. If he and his neighbors and others had not interposed delays in the development process for Kings Crossing through their unreasonable demands, today we would be enjoying a jewel of a town center, Quander Brook would be restored and the community would be recreating at Fairchild Park. Instead, we have a Wal-Mart, an eroded polluted Quander Brook and little hope that the Fairchild property will ever be a park. Moreover, the value of properties in Mr. Tillett’s community would likely be enhanced. Perhaps Mr. Tillett should consider more carefully the possible ramifications of his actions before asserting them.

H. Jay Spiegel

Mount Vernon

The author has lived in the Mount Vernon District and has owned property there for over 30 years. He holds a Bachelor of Science degree from the Cornell University College of Engineering and a law degree from George Mason University. He was formerly a member of the MVCCA’s Environment & Recreation committee and is a past chairman of its Planning & Zoning Committee. He represented the Mount Vernon District on the APR Task Force for BRAC and was a vice-chairman of the land use committee of the 2009 Visioning Task Force. He established navigation on Little Hunting Creek and is personally responsible for its navigation buoys and no-wake zone ordinance which he drafted with assistance of the County Attorney’s office. He has extensive experience developing properties in environmentally sensitive areas and counseling others concerning such developments.