Land Use Issues Await New Governor and General Assembly
By Tyler Craddock • Nov 11th, 2009 • Category: Feature, Land Use
The elections are over; Virginia has a new Governor and several new members of the House of Delegates, and when Bob McDonnell takes the oath of office and the General Assembly reconvenes in January multiple problems will be awaiting attention.
Among them are a series of land use issues that will affect Virginia’s competitiveness in future years. Producing land use policies that strike a careful balance between our cherished quality of life and the needs of Virginia’s business community is an important part of our efforts to maintain the Old Dominion’s status as the best place in America to do business.
One item that the new Governor and the General Assembly may have to deal with right off the bat is stormwater. It is likely that in December the Virginia Soil and Water Conservation Board will give its final assent to stormwater regulations that adopt a new, very strict standard on phosphorus runoff. Most business community stakeholders are rightfully concerned that these new requirements could bring to a halt many – perhaps most – development projects within the Chesapeake Bay Watershed.
The stormwater issue is complicated when you consider two recent developments. First, as pointed out by the Fountainhead Alliance, a group of businesses from across Virginia that promotes balanced environmental policies, in recent months the Environmental Protection Agency (EPA) has significantly raised Virginia’s Chesapeake Bay phosphorus allocation – the number upon which the proposed new regulations are based. Virginia is only barely above its new non point source allocation now, and with the stormwater controls already being employed, the phosphorus loading from development sites is already in decline. This suggests that the proposed regulations might be a very expensive solution in search of a problem. It certainly supports the position advocated by the Virginia Chamber of Commerce, the Home Builders Association of Virginia, the Fountainhead Alliance and others that the technical review portion of this process needs to be undertaken again to ensure that the standards coming forth are based on the best available science and are truly tailored to achieve a positive environmental outcome for the Bay.
Second, even though the EPA has raised Virginia’s phosphorus allocation, they have also sent out a letter to the various Bay states requiring them to have plans with a high degree of accountability in place to meet the majority of their pollution reduction goals by 2017. According to press reports, the letter from President’s Obama’s Bay Czar, Chuck Fox, trumpets “a new era of federal leadership for the Chesapeake Bay, one that is marked by new accountability.” So, however Virginia chooses to address stormwater, it will have to do so in an environment of increased federal scrutiny.
In addition to stormwater, it is possible that the new Governor will have to address the issue of cash proffers. While many in and outside the business community recognize the need for infrastructure funding to support economic growth, they also recognize that the cash proffer system as it is practiced in some localities is drastically affecting the affordability of housing in Virginia. You will recall that in 2008, Senator John Watkins introduced Senate Bill 768 to repeal the ability of local governments to accept cash proffers and instead give them the power to charge impact fees on new residential development. While many in local government have advocated for impact fee authority, they were not supportive of this legislation as it contained caps on the fees they could have charged. The residential development industry, which has long been a foe of impact fees, would not support them without some sort of cap mechanism. While the bill went away, this issue has not. In fact, it has been the subject of much discussion in the Joint Commission Studying Development and Land Use Tools, which is chaired by Delegate Clay Athey, and it is possible that this issue will come before the General Assembly again.
A third issue, and one also being discussed by the Athey Commission, involves changes to the land use reforms that were a part of House Bill 3202 from the 2007 session. One of those changes is the requirement that localities establish Urban Development Areas (UDAs), areas designed to be the places where future growth would be focused. The intent is to promote more compact development patterns thereby controlling the cost of providing infrastructure, particularly transportation, to future neighborhoods and commercial areas.
As localities have worked to implement this requirement, concerns have emerged. For example, the legislation requires that localities make their UDAs large enough to accommodate 10-20 years of future residential and commercial growth at a minimum density of 4 residential units per acre and a commercial floor area to land ratio (FAR) of 0.4 (that means 17,424 square feet of commercial floor space per acre). Debate has arisen over the appropriateness of that minimum standard and whether the law requires that minimum density on every site or just as an average across the UDA. Resolution of these and other issues will be something that the new Governor and the General Assembly will have to tackle in a balanced, thoughtful manner if we are to retain our pro-business reputation and our competitive edge.
Tyler Craddock is the Director of Government Affairs for the Virginia Chamber of Commerce. Previously, he served as the Director of Public and Government Affairs for the Home Building Association of Richmond. Prior to moving the Richmond area, he worked as a Legislative Aide to former Delegate Allen W. Dudley (R-Franklin County), a consultant to former North Carolina State Representative Cary Allred (R-Alamance County) and in the private sector as a real estate agent for Prudential McCann Realty in Burlington, North Carolina. A graduate of Virginia Tech (BA ’93, MA ’96), he resides in Chesterfield County with his wife and children.
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What a bunch of crap. “While many in and outside the business community recognize the need for infrastructure funding to support economic growth, they also recognize that the cash proffer system as it is practiced in some localities is drastically affecting the affordability of housing in Virginia.”
There are a number of studies that indicate much of the cost of infrastructure impact fees can not be passed along to home buyers or commercial tenants, especially in the lower end of the market. Cost-based impact fees have also been found to push down land purchase prices. The costs to build infrastructure paid by taxpayers burden small businesses. But yet one more time the Virginia Chamber of Commerce sells out small business in favor of the real estate developers.
Watkins’ bill will be opposed by every legislator from Fairfax County.
Storm Water has a fairly simple solution – let’s start testing the outflows and build a database of what is actually found in the outflows (and what is not) BEFORE we start specifying what needs to be done.
Perhaps this has already been done.. but in terms of Transparency and Accountability – it’s not.
But I’m Surprised that there is no mention of the TMDLs or more specifically TMDL allocations.
Under the new rules, a locality’s allocation is not based on future population growth. It’s a static number.. such that if you have growth – the load cannot increase.
If you think about growth that involves sewage treatment – what this means is that future growth may well require tertiary treatment of sewage.
and … we haven’t even got to the part about what needs to be done about prescription drugs, antibiotics and hormones in the wastewater effluent.
Truth be known – these 3 substances may well have a much bigger impact on aquatic life than mere nitrogen & phosphorous .. but never fear.. it appears thus far that none of these stuff will actually be measured … so we won’t be writing regs based on what is actually found and in what quantities but rather what some “model” predicts.
I hope business growth corresponds with the willingness of localities to allow builders to build homes that employees of these new businesses want to live in. As more and more land in Virginia comes under severe use restrictions by government at all levels and by private land trusts, less and less land can be used for traditional middle class housing, preferred by most people, especially young couples with children. They do not want high density living (the planning fad sweeping the country). I also hope that localities that come under the planning spell of preservationists (those who already have what they want), they realize that housing prices for many will become unaffordable. Moreover, I hope local government officials will discount residents who oppose “sprawl” subdivisions when they, themselves, live in sprawl. Also, officials should not condone the demonization of developers, who find it extremely difficult and costly to build housing, and are businesspeople whose success is determined by profits, put at risk by those who micromanage their business without sharing in those risks.
My county, Loudoun, in northern Virginia has downzoned for the second time (”smart-growthed”). Most of the county requires large lots for housing (no public water and sewer allowed). Two thirds of the county has downzoned to 20 and 40 acre lots for a home, ensuring that only the haves can live here and also explaining why Loudoun has the highest household income in the country. You have to be well off to live here. High density housing near expensive (road killing) light rail is the housing embraced by our exclusionary (”snob”) zoning. Pack ‘em in so that most of the rest of the county can enjoy expansive yards, stolen in my opinion, from those who yearned for that small house on a small lot to call their own.
If Virginia truly wants businesses to locate here, then it must allow housing that people want. Housing is a derived demand of job growth. (I know people who support job growth but not housing growth.) I hope other localities will learn from Loudoun. There are trade-offs when governments make aesthetics (and pet horses) more important in their law than the livelihood of ordinary people. Rose Ellen Ray