VDOT Revisits Land Use

Proposed new regulations would reform – or undermine, depending upon your point of view — a keystone 2007 law designed to limit the negative impact of local land use decisions upon state roads.

Subdivision stub outs -- sometimes they work better in theory than in practice.

By James A. Bacon

In 2007 members of the General Assembly were struck by a revelation: There were ways to address the problem of traffic congestion in Virginia that did not entail building expensive new roads and highways. Gridlock arises not only from a growing population and increasing traffic load but from poor planning and design. Accordingly, the legislature enacted a sweeping overhaul of state law regulating the interface of transportation and land use.

Provisions of the law required traffic impact analysis for new development, greater street connectivity between new subdivisions and tighter regulation of public access to state highways. The bipartisan action was widely regarded one of the signature achievements of the Kaine administration.

This year the General Assembly passed a law directing the Virginia Department of Transportation (VDOT) to review the legislation and enact new regulations as needed.  A VDOT advisory committee has recommended several changes, which await approval either by the Virginia Highway Commissioner or the Commonwealth Transportation Board.

The revisions represent a victory for the real estate industry. Two measures – one that would reduce the size of rezoning projects required to conduct a Traffic Impact Analysis, and another that would modify regulations requiring new subdivisions to connect with one another – stand out as particularly important. The two provisions will relieve developers and home builders of significant regulatory costs while still preserving the intent of the original law, maintains Mike Toalson, executive vice president of the Home Builders Association of Virginia.

But smart growth activists say the proposed new regulations will dilute the effectiveness of what had been one of the most progressive efforts in the country to coordinate transportation and land use. Stewart Schwartz, executive director of the Coalition for Smarter Growth, described the 2007 law as an effort to stem the growing and unaffordable list of transportation projects requested by local government and passed up to the General Assembly.

“We will never have enough funds to build the quantity of infrastructure created by patterns of development that have been increasingly used since World War II,” Schwartz wrote to Virginia Highway Commissioner Gregory Whirley. “By preserving the throughput of our highway network through better access management, by measuring traffic impact and applying creative solutions to reduce demand, and by increasing local street connectivity to reduce demand and traffic on our overburdened arterial roadways, we can save the tax payers of Virginia huge sums of money that would otherwise be required for new highways, the widening of dozens of arterials, and the addition of dozens of new interchanges.”

The idea behind the regulations, says Trip Pollard, senior attorney with the Southern Environmental Law Center, is to look before you leap. “Yes, there is a cost, but it’s a very reasonable cost.” The proposed revisions “are not the end of the world,” he concedes, and Virginia still will be better off than five years ago. “But we’re losing a lot here. … If you don’t address transportation and land use, you’ll end up with sprawl and congestion.”

The revisions address three broad areas: traffic impact statements, secondary street acceptance requirements and access management regulations. (View VDOT’s video presentation of the regulatory changes here.)

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108 responses to “VDOT Revisits Land Use

  1. I love this state.

    First, there’s this …

    “This year the General Assembly passed a law directing the Virginia Department of Transportation (VDOT) to review the legislation and enact new regulations as needed. “.

    What does VDOT do during years when the Clown Show in Richmond doesn’t pass a law telling VDOT to do its job?

    “The idea behind the regulations, says Trip Pollard, senior attorney with the Southern Environmental Law Center, is to look before you leap. “Yes, there is a cost, but it’s a very reasonable cost.” The proposed revisions “are not the end of the world,” he concedes, and Virginia still will be better off than five years ago. “But we’re losing a lot here. … If you don’t address transportation and land use, you’ll end up with sprawl and congestion.”

    I give up, Bacon, what is the Southern Environmental Law Center? You rant and rage about the Metropolitan Washington Airport Authority and their status as an un-elected board making policy decisions. Then you quote some group which dispenses pearls of wisdom such as:

    Look before you leap.
    If you don’t address transportation and land use, you’ll end up with sprawl and congestion.

    Good thing we’ve got Trip on the case. Otherwise, we might have sprawl and congestion in Virginia.

    Here’s soem advice for you Jim:

    Spend more time talking to engineers and less time talking to lawyers.
    Never waste any time talking to anybody named Trip.

  2. Oh wait! There’s more …

    “Pollard, the SELC attorney, says he can see the developers’ point of view and he was willing to compromise on the issue. He doesn’t have a problem with raising the threshold to 5,000 trips in areas with urban densities. But the number is too high for smaller communities and rural areas, where a 2,500-trip development could have a big impact.”.

    So, we can raise the threshold in “areas with urban densities” (not just core confusing words but core confused thinking). However, smaller communities and rural areas need more protection against congestion.

    Trip should have spent less time at Eljo’s and more time in the Logic and Contemporary Rhetoric class back when he was an undergraduate.

    Where does Sir Tripingham think the congestion in Virginia exists? On dusty country lanes or crowded suburban streets?

    It’s OK to pour even more car trips onto clogged suburban streets because those streets are in areas with “urban densities”.

    Bacon, find some new friends. And here’s a hint – try the engineering school instead of the law school this time.

  3. Groveton, development can cause problems in less populated areas because the road network often consists of nothing but narrow, windy, two-lane roads with very low capacities. It doesn’t take too many subdivisions to gum up the works.

  4. Groveton, I don’t “rant and rave” about the SELC because it doesn’t have power to spend/squander billions of dollars with no accountability. It’ s just another interest group. Now… instead of impugning peoples’ credibility and motives, why don’t you address their arguments?

  5. the traffic study requirement can be easily fixed. Use an index of how many trips are generated verses the existing V/C of the receiving roads.

    that way if significant capacity exists – no study would be needed but in cases where capacity is already constrained – a traffic study is actually needed to help determine mitigation.

    there is nothing wrong with codifying the regs so that everyone knows what they are including developers rather than have VDOT in the business of making somewhat arbitrary decisions based on more subjective criteria.

    the thing about delay is bogus…. if you deal with the traffic study in the initial phase …. In fact before the project ever comes in front of the BOS, the traffic data should be available to help in making an informed decision.

    on the subdivision connectivity – VDOT needs to take a hard line on the stubs – turn the stubs into roundabouts to discourage cut-through traffic but don’t cave on the connectivity. Every new traffic signal to serve a subdivision comes at the expense of everyone else including other subdivisions.

  6. “Groveton, development can cause problems in less populated areas because the road network often consists of nothing but narrow, windy, two-lane roads with very low capacities. It doesn’t take too many subdivisions to gum up the works.”.

    But it won’t cause problems on straight four lane roads that are absolutely chock-a-block with traffic 8 hours a day.

    The land use decision has nothing to do with urban vs. rural. It has everything to do with the capacity of the existing road infrastructure. In fact, the congestion is systematically more prevalent in the cities and suburbs.

    The logic which holds that currently un-congested roads need more protection than currently congested roads is statistically ass backwards. Whereas the un-congested roads may become congested, the congested roads are already congested.

    So, why would anyone believe that rules designed to combat congestion should be tighter in places with less congestion than places with more congestion, statistically speaking?

  7. The SELC and Coalition for Smarter Growth (Schwartz) have no financial interests in the issue. Both are NGOs that are concerned with the same things that Groveton is concerned about – i.e. what makes NoVa a place where people want to come to work and employers want highly educated younger workers.

  8. “Groveton, I don’t “rant and rave” about the SELC because it doesn’t have power to spend/squander billions of dollars with no accountability.”.

    No, they just sue people left and right in order to further the narrow interests of their sponsors.

    The MWAA is appointed by elected officials. They have authority over the Dulles Toll Rd because our elected officials gave them that authority.

    Do you consider the US Supreme Court an unelected organization too?
    How about the board of directors of Dominion Power?

    You philosophy is simple: You were only too happy to enjoy the infrastructure paid for by the generations which preceded you. However, you are unwilling to pay your fair share of taxes for the current and future needs for infrastructure.

    When do you propose to pay back the government for the 50+ years you spent using free infrastructure when you should have been paying user fees? And you wonder why the kids in New York are sick of the crap that their parents have handed them?

    Raise the gas tax. Pay your fair share. Build the roads.

  9. re: ” How about the board of directors of Dominion Power?”

    bad example Groveton. Dominion is regulated by the SCC -a bunch of unelected faceless bureaucrats who decide if Dominion is charging too much or making too much profit – as opposed to the folks who actually pay the bills.

    The SCC is part and parcel of the very Clown Show that you decry….

    😉

  10. “By preserving the throughput of our highway network through better access management, ………….. we can save the tax payers of Virginia huge sums of money …………”

    After you strip aay all the other garbarge, what this sentence says is that we can save money if we are not allowed to use the roads.

    Schwartz must be sthe stupidest person on the planet if he thinks ordinary people can’t see what this means. And he is even dumber than that person if he actually believes this will save taxpayers money.

    That is like pointing out that Fauquier residents pay lower taxes than Loudoun residents, without pointing out that Loudoun residents own property that is something like $14billion more valuable.

    This is a classic example of the agenda driven drivel, half truths, and spin-mongering that represents political discourse and public participation in the government process. Groveton can blame the end result on the clown show in Richmond, but when they are constantly entertained and educated by the likes of Gurth and Wamba and Stewart, what else would you expect?

  11. “The land use decision has nothing to do with urban vs. rural. It has everything to do with the capacity of the existing road infrastructure. In fact, the congestion is systematically more prevalent in the cities and suburbs.

    The logic which holds that currently un-congested roads need more protection than currently congested roads is statistically ass backwards. Whereas the un-congested roads may become congested, the congested roads are already congested.”

    Groveton is entrely correct, here, but he has missed the point completely.

    This has nothing to do with preventing or easing congestion to prevent or reduce pollution and waste, this is about the preservation of open space, and the entire traffic argument is a red herring.

  12. The SELC and Coalition for Smarter Growth (Schwartz) have no financial interests in the issue.

    ==============================================

    That is not true. Those guys draw nice salaries by catering to and collecting money from their designated constituents.

  13. Groveton said, “Your philosophy is simple: You were only too happy to enjoy the infrastructure paid for by the generations which preceded you. However, you are unwilling to pay your fair share of taxes for the current and future needs for infrastructure.”

    Huh? Unwilling to pay my fair share? Groovey, you can do better than this. This is so far from what I think and have written that I don’t even know where to begin saying how wrong it is.

    • Several years ago I would have agreed with your assertion of being willing to pay. However, the last 12 months have seen nothing but a series of eloquent rants against every transportation project under the sun. Rail To Dulles? Horrible. Charlottesville bypass? Bad idea. High speed rail? No way.

      The Southern Environmental Law Center? Have you even stooped to consorting with progressives if they’re willing to block transportation projects?

      Our brilliant government(s) spend 41% of America’s GDP. Would you rather have the Rt 29 Bypass or half a Solyndra?

      Or, $40M to supply Mexican drug cartels with free guns?

      http://www.sodahead.com/united-states/project-gunrunner-was-funded-by-the-stimulus/question-1954711/

      The question really isn’t whether the transportation projects in question are good investments. The question is whether they suck less than the alternative money burning exploits of the Obama Administration.

  14. “Dear Smart Growth Supporters,

    Every day we crisscross the Washington DC Region successfully helping you make your communities more green, inclusive, and walking, biking and transit-friendly. ……Please help us continue to help you, your communities, and our region plan for the future. We rely on your support to continue our successful, award-winning programs. Donate now. ”

    Notice it does not say a word about improving transportation: it is about keeping things green.

  15. re: access management and “not allowed to use roads”

    this is silly.

    access management is simple things – like curb cuts … and right-in, right-out for high traffic entrances… intra-parcel connections, restricting median cross-overs, giving priority to mainline roads while making side street traffic wait, etc, etc.

    the key word is “management” – not “not allowed to use”.

    What VDOT does with access management is no different than METRO with down-only ramps or airports with drop-only lanes ….etc…

    the point is to increase efficiency and reduce infrastructure costs.

  16. mobility is MORE than transportation – in the eyes of those who eschew transportation-only approaches to mobility.

    It’s much more than green space and bike/ped.

    but the big conundrum is that roads are funded (sort of) from user taxes and other kinds of mobility most often do not have dedicated funding sources other than farebox which comes up short on transit/rail.

    Air travel is heavily subsidized also.. and also heavily uses congestion tolls…. to “manage” congestion… in fact, they may have invented the concept.

    and it works pretty good. There is usually a wide range of prices for the same point A to point B trip -and the cheaper the price -the bigger the compromise/hassle.

  17. It is about green spaces. All the rest is a ruse and a lie.

    Like Bacon, smc has never, so far as I know come out in favor of a road construction project..

    Access management is about limiting use, there is no other way to manage access. When that management affects one property negatively and another positively, who pays the difference? Limiting road use is NOT a way to save money for Virginians.

  18. Most air service infrastructure is ” subsidized” out of the tax on aviation fuel and taxes on passenger tickets. $137 dollars on one recent ticket of $427. Airport operations make their money from rental of spce, haters, and facilities, plus fuel sales, and landing fees. A few airlines get subsidies for providing service to underserved locations.

  19. access management if a widely practiced strategy to include FHWA policy with regard to where ramps can be.

    if you do not preserve and protect the infrastructure – then more infrastructure has to be built. Problem is that everyone who wants the new infrastructure wants Richmond (aka taxpayers) to pay for new bypasses, etc and we’ve gotten to the point where 80% say “no way”.

    that leaves you with one option – access management.

    the purpose of any publically-funded infrastructure is not to insure absolute proportion treatment across the board.

    if that was the standard – no infrastructure would ever get built.

    it boils down to something pretty simple.

    A business might want a median cross-over to get more business but if the median is put there – it will increase congestion (and accidents) and delays to people trying to use the road to get to their destination which could be work, home, or even another business.

    how do you weigh the costs and benefits of median crossovers?

    what would happen if you allowed them on interstates for people to get back to an exit they passed?

  20. Airlines use variable pricing not to manage congestion, but to maximize income. When the price is right the airline will bring in another plane, or a bigger one.

    You will find that toll road operators do the same : operate for revenue rather than throughput. Only toll roads cannot add another plane.

    Oh yeah, air travel is cheaper than ever, tracing a new low cost of 15 cents per seat mile. Buses don’t come close, and neither does metro.

  21. I’m not arguing that access management is not necessary. I only demand that You call it what it is.

    The maximum throughput for a lane of traffic occurs at about 25 MPH and three car lengths apart. Faster or slowere and closer together or farther apart leads to less throughput, and less utility for the road. We should therefore design land use to provide that traffic density.

    Except that, it might be worthwhile to accept lower road utility, if the increase in land use utility is sufficient to offset the decrease in road utility.

    And also one might accept periods of congestion and periods of under use of the road in order to maximize the time variable most probable use value of the road.

    Maximize those use functions congruently, and you have basically solved the land use and traffic conundrum.

  22. I do not know how to weigh the costs and benefits of a median crossover, but I know it can be done.

  23. f you do not preserve and protect the infrastructure –then more infrastructure has to be built.

    Well, no. If the infrastructure is performing to the Max, you leave it alone and move on. Sprawl.

  24. he point is to increase efficiency and reduce infrastructure costs.

    Wrong. The goal is to produce the maximum net social , which might actually mean spending more AND Accepting less road efficiency.

  25. ” Wrong. The goal is to produce the maximum net social , which might actually mean spending more AND Accepting less road efficiency”

    no… I don’t think so… where do you see that?

    isn’t that YOUR idea but not very many others?

    you keep saying “maximum net social” but there are thousands of moving parts…and I’ve yet to see any model of any kind that you would claim to support your ideas and your ideas seem to advocate higher and higher taxes on people to pay for more and more infrastructure … that dog don’t hunt when representatives are elected.

  26. The 527 process has been the best new law since I moved to Virginia in 1984. It forces local government to consider the impact of certain land use changes on transportation. It also looks at the ability of transportation changes to absorb the additional traffic. But for campaign contributions, any sensible government would do this automatically.
    It does not help anyone, except the fast-buck trader, for a community to develop itself into complete gridlock. Do people want to move to a community where it takes them 45 minutes to go two miles? Of course not.
    The 527 requirement pushed Fairfax County to make reasonable decisions in Tysons Corner. The County put the highest density within 1/4 mile of the rail stations. Not only does this maximize the chances residents and workers will take rail, but it also prevent donut development, where large buildings are constructed beyond normal walking distances from rail in order to take advantage of lower priced land. One of the results so far has been the approved plan of the Georgelas Group to build 400 rental units in a building within 1/4 mile of the Tysons Spring Hill Station. Landowners well outside walking distance are not proposing to build.
    What else? Fairfax County, in an attempt to reduce traffic congestion, reversed itself and decided to ask VDOT to widen Route 7 going west from Tysons. Moreover, VDOT reached out to community groups and said, “Give us input on what we might build and how we might build it.” The effort has now brought in the Tysons landowners to give VDOT even broader perspectives. 527 works.

  27. TMT is right on and you’ll find that cities/towns and Henrico/Arlington are much more likely to require their own versions of 527 when considering development.

    what you want – is development that COMPLEMENTs the community – adds value to it… makes it even a better place to live.

    that should be a mandatory question for each and even rezone – ” what will your proposal do for the community”?

  28. What will your proposal do for the community again presupposes that the community has more rights than the landowner. Any semblance of fairness requires that the rights of both parties be protected equally. Again you start from the position that. ( bare) land citizen has no rights, while citizens who ( previously) exercised their bare land rights now claim a superior position.

  29. If that is going to be a mandatory position, then the community had an obligation to state up front what it is that counts as a sufficient condition. No more of this ” bring me a rock” nonsense.

  30. … I don’t think so… where do you see that? isn’t that YOUR idea but not very many others? you keep saying “maximum net social”……..

    +++++++++

    It is not my idea, and it is public policy, printed on the gpo webpage and echoed at EPA, AG, and other government sites.

    ” There is no reason for any legislation or regulation that does not increase the net social benefit.”

    It is not easy to calculate, but it is not impossible either. But, to do it, one must count up ALL of the reasonably large plusses and minuses. This means that a minus the community imposes on a landowner counts EQUALLY with a minus imposed on the community by a developer.

    Equal rights for equal value.

    It also means one must be consistent. You cannot value a traffic light with one value per life, and value hpv vaccinations with a different value.

    It is easy for me to envision a situation in which the net social benefit is increased, despite the cost of increased congestion.

  31. It does not help anyone, not even the fast Buck trader to develop a community into gridlock.

    That is not my position and never was. But the characterization as a fast Buck trader is not In any case in any case the communities negative impact on him counts equally as his negative impact on the community. No more, no less. Whether you like his business or not.

  32. Whether the 527 process is biased in favor of transportation or biased in favor of land use, the result will be less than optimum net social benefit.

    If you have an unbiased decision process, then the 527 process us not necessary.

    So, how does one go about establishing an unbiased process?

    I have suggested various kinds of auction. You think the development decision belongs to the community?
    Fine. Give every member of the community a certain number of development chits. If a revelled can buy enough chits, then his project goes forward. Those that do not want development can sit on their chits, raising the price anyone willing to sell will get. The developer cannot afford to buy more chits than his development is worth.

    There is a model that is fair to everyone, and guarantees that the community gets what it wants at a fair price. The government gets its share as a percentage of the chits sold. This income replaces the arbitrary proffer system.

    Tell me what is not to like. Anti development persons can have their way and prevent development if they can convince enough people to not sell and eat their chits. Failing that, they will have raised the price to developers, and the cash back to government. They just cannot do it for free. They now have to eat the opportunity cost of not selling, just as the developed has to eat the opportunity cost of not building.

    If there are multiple developers, the one with the most net benefit can afford to bid the most to get his project built.

  33. re: the community – has those rights – it’s in the Constitution – both the USA and Va.

  34. ” It is not my idea, and it is public policy, printed on the gpo webpage and echoed at EPA, AG, and other government sites.

    ” There is no reason for any legislation or regulation that does not increase the net social benefit.””

    but they are doing just that – you don’t agree but you have no alternatives to challenge them with

  35. ” It does not help anyone, not even the fast Buck trader to develop a community into gridlock.

    That is not my position and never was. But the characterization as a fast Buck trader is not

    except that the laws allow communities to decide just as our elections are decided and the supreme court decisions are decided.

    ” In any case in any case the communities negative impact on him counts equally as his negative impact on the community. No more, no less. Whether you like his business or not.”

    I do not think so. The community has MORE rights than him because they have the rights of others added up such that if a road is already gridlocked – they can decide not to make it worse. That’s a legal and constitutional right accorded to the community of other property owners…

    the community gets to decide what is “equal” – as long as everyone is bound by the same rules. The rules themselves can and do change if a majority of property owners agree.

    this is called governance….. a right the Constitution gives to all property owners.

  36. re: the 527 process and development rights…

    you’re mistaken Ray.

    it’s not development rights – it’s property rights.

    and all owners of property have rights.

    including the right to decide how their community will be developed.

    the 527 process basically tells us how much money will be needed to upgrade transportation infrastructure to support prospective development.

    the property owners who will have to pay higher taxes on their property to pay for increased infrastructure -have a vote in that decision.

    the “balance” you speak of is called elections.

    if “on balance” a majority of property owners feel that they are not being unfairly taxed for infrastructure – then they’ll keep their current elected representatives.

    If, on the other hand, they feel like their elected representatives unfairly favor those who have development “rights” over property “rights” they’ll toss them.

    and the Constitution, the law and the Supreme Court of Va and the USA all agree that this is the way we decide.

    you, of course, are free to advocate change. And if you make an effective enough case so that enough others join you – then the laws will be changed.

    As we speak – there are “others” who want to get rid of the 527 process.

    In other words they don’t want a process that educates us as to how much more transportation infrastructure might be needed and it’s costs.

    Nope – they want that information kept from being developed.

    and that’s the “fair” process you want?

    ha ha ha… sorry Ray.. you too should WANT a process that better informs us about the costs of what we are doing and what happens if we do something that has costs but we don’t want to know about them.

  37. What are a landowner’s development rights? A landowner can develop in accordance with the existing Comp Plan, zoning ordinance and all applicable laws and regulations. A landowner can also request changes in, or waivers from the same that would permit the landowner’s proposed development. In the later case, the landowner is generally required to proffer money or improvements that address, at least part, of the impact on the community that the landowner’s development will cause.
    In addition and under certain conditions, the landowner must work with local government to prepare a 527 Traffic Impact Analysis for review by VDOT. VDOT can insist that the TIA meet VDOT standards before it is required to accept the TIA and sends comments to the local government on the TIA and the impacts of the proposed development and proposed means of addressing the effects of the development on transportation. Local government is not required to follow the VDOT recommendations, but the 527 law has created substantial political pressure on local government not to ignore VDOT’s comments.
    Finally, the Virginia supreme court has held that local government can amend the Comp Plan and reduce permitted density if the amendment is done on a comprehensive basis, and not on a piecemeal basis, using evidence that makes the issue fairly debatable.
    The Georgelas Group could have proposed to build by right on its land in Tysons Corner. It probably could have built to a FAR of around 2.0, perhaps, a bit higher or lower. It elected not to do so, but instead, proposed to develop to the new Comp Plan and sought rezoning. The Company had to make substantial proffers and demonstrate compliance with the Plan and other applicable rules. Fairfax County gave its approval of the proposed 400-unit rental residential building project, which was generally supported by the nearby community groups.

  38. We see Comp Plan change proposals down this way all the time. We also have a zoning code that basically requires special use permits for each permitted use – that goes with the property owner – not the land.

    development rights are not etched in stone but change and as long as the changes apply equally to all property owners – it is deemed constitutional and legal.

    Now I would agree with Ray (and Groveton) on one important point – the boundaries between counties are artifacts from the King of England and the arbitrary differences in land-use regs is bizarre and onerous.

    Some States – like Maryland and Florida have more state-wide land-use rules not specific to the counties.

    Land use regs actually end up pitting one county against another and in the end are somewhat responsible for places like Fairfax skimming the economic benefit of jobs and outsourcing the costs of residential to the exurban counties – of which Facquier refused to play the game – to the disadvantage of many ordinary property owners who could pay more taxes and prosper better if they could do SOME subdivision of land.

    but in terms of taxpayer-provided infrastructure – the public should have the right to know what the impacts will be – and to either require mitigation or deny the proposal if the impacts are deemed unacceptable.

    I would see this as little different than someone who wants to put up a coal plant in Tysons …gets shot down.. and claims that since people had that right a century ago that their “development” rights have been unfairly taken away….

  39. Ray: ” Give every member of the community a certain number of development chits. If a revelled can buy enough chits, then his project goes forward. Those that do not want development can sit on their chits, raising the price anyone willing to sell will get. The developer cannot afford to buy more chits than his development is worth.”
    ____________________________________________________
    What you are describing here is a rough outline of TDR programs. And after spending three years creating these programs, I can tell you they will work.
    Relevant post: http://www.shapeofthefuture.blogspot.com/

    Larry makes a good point in mentioning that development rights and property rights are two different things. No landowner is ever guaranteed zoning, but they all have property rights.

    TMT:
    “…the Virginia supreme court has held that local government can amend the Comp Plan and reduce permitted density if the amendment is done on a comprehensive basis, and not on a piecemeal basis”
    ____________________________________________________
    Yes, they can reduce the density in the Plan, but any such reduction does not affect any property that has already been rezoned with proffers. The best way to tackle stale zoning is with transfer programs.

    As to the subject of the post: The 527 has had its issues and we’ll see how the amendments work out. But I can see some localities using the TIA to deter development plans. It happened before the 2007 legislation, and it will continue. Even if VDOT does not mandate a TIA, if the locality doesn’t want a proposed development, they will say “OK John Q developer, if you want to develop this property, we will require a scope for the TIA that covers everything within 20 miles.”
    As for access management, if a locality has a solid transportation plan with paralleled roads where they should be, the property owners within a given area can all benefit from a shared access point. I don’t live in NOVA, but my community is located on a stretch of 360, where they permitted too many access points. AM and PM peak is a nightmare, but as soon as you get past that last signal, it’s smooth sailing all the way to Chippenham. All three of the elected and appointed officials for the district live in the section of the corridor where there are no signals. Yea OK!
    As for connectivity, Most “been here’s” will do anything to prevent the “come here’s” from connecting to their streets. I think one of the problems is that most people don’t understand that if there are multiple connection points, the overall volume will be lower. I think local officials and/or VDOT should do more to further public understanding of these issues.

  40. Andrea, I agree with your statement on previously rezoned property when a broad area is down-planned. You are more precise than was my comment.
    TIAs. Fairfax County is requiring combined TIAs that cover each Tysons landowner in a station area, the combined impacts within each station area, and impacts of the individual properties and station areas on Tysons and surrounding areas. The County is paying for this (as it should). Landowners must prepare their own TIA if they pass the trigger in terms of additional traffic volumes.

  41. I’m not completely sold on TDRs yet. The devil is in the details.

    A guy with land 100 miles from an urban area may well have 3 “development'” rights on his/here land but their worth is far different than 3 development rights right next to properties that are served with water/sewer and 2 miles from an interstate ramp.

    If you have two parcels “near” existing development (in the future path of) and one of them is significant in terms of history or culture how would that be reflected in value compared to non-significant land?

    finally – do you really want land that is adjacent to an existent growth area – set aside and never developed if it results in leapgrogging?

    I’m afraid that unplanned and un-focused TDRs are going to cause more problems than they solve.

    Perhaps Andrea can write a post about the ins and outs of this… and Jim can post it for her.

  42. Larry, you are 100% correct. The devil is in the details.
    And without writing more than you want to read, I can tell you that the success or failure of any system rests mainly with the ranking system for sending parcels, and the transfer ratio formula for the receiving. If your ranking system and transfer ratios are solid (as all three of mine are) the transactions will be fair and unemotional.
    I would not offer to purchase credits from a parcel with development pressure because that would promote the leapfrog which would lead the locality to resist the concept.
    The property with water/sewer and within 2 mile of a ramp will be purchasing credits from me (I hope)! That would be a receiving area.

    Now, if someone who hasn’t spent the past three years developing this system were to try to make the transfer system work without fully understanding property dynamics, your fears would be realized.
    But I am almost portable, so no worries.
    Seriously, the procedure is VERY SPECIFIC 🙂

    TMT: The COUNTY pays for those studies?

  43. Andrea – the consolidated or combined TIAs for the station areas in Tysons are not required by the 527 rules. However, Fairfax County DOT believes that it needs more information on the interplay of the various developments within a TOD area (station area) and with the rest of Tysons and surrounding areas. Therefore, Fairfax County is paying for what it wants beyond the scope of the existing 527 regulations. I think the studies are worth while and the County should pay for them.

  44. Andrea – I’m watching Spotsylvania do this and I do not get a good feeling about it.

    It was asked the other day what the relationship between Land Use taxes and TDRs were and the county planners were clearly flummoxed – i.e. had not done their homework.

  45. “but they are doing just that – you don’t agree but you have no alternatives to challenge them with”

    So you think every government regulation increases the net public benefit?

    You are making my complaint for me: we have no way of knowing if we increased the net public benefit, because we seldom go back and look. We make a prediction, whcih we use to approve or deny the regs. Then we forget about it.

    The metro extension was initially DENIED because it did not meet the criteria, but we are going to get it anyway.

  46. Where is it in the constitution?

    If VDOT comes and takes your land and home to put in a road improvement they have to pay you for it.

    But if the county council takes 99% of the value of your property to retain the present public use of a road (or for any other public use) they have to pay nothing, even though th law recognizes property as a bundle of sticks.

    So we have a situation in which government may not take property without paying for it, but they can incrementally take one stick at a time and pay nothing.

    Say what you think about the (present) legality of this situation, the ethical reality stinks.

    The government has an obligation to protect people and property equally. That much is in the constitution AND the law.

    Now, what justification is there for protecting $100 worth of on persons right to travel more than $100 of another persons right to use their property?

    There is none and there can be none without accepting that some peoples property gets more protection than other peoples.

    Let’s say that you increase the value of one persons right to travel by $100 and decrease the value of another persons right to use their property by $100. There is no net benefit and no reason to support that transaction.

    Furthermore, if you believe you are on the short side of that transaction, there is no usable due process by which one can reasonably seek redress.

    Nevertheless, we are even now paying the native americans for things we took from them without payment, and that has been the case in some land use disputes as well. The only thing that is missing is the matter of degree, the issue of the bundle of sticks.

    Except for that little issue which does presently affect the facts on the ground, your argument is factually incorrect and ethically corrupt: You may not take property without payment. You may not favor and protect one person or property over another. And you must offer due process for redress of grievance.

  47. “and all owners of property have rights.
    including the right to decide how their community will be developed.”

    In other words the people with undeveloped property have no rights.
    Or their rights are decided by majority, not by value.

    “the property owners who will have to pay higher taxes on their property to pay for increased infrastructure -have a vote in that decision.”

    So, you have a hundred property owners that might suffer either $100 in delay every year or $100 in additional tax every year, and they can vote to deny another citizen the right to develop property that will produce $10000 per year in taxes. or even $20,000 per year in taxes.

    There is no net public benefit in that transaction, not to mention the fact that it is grossly unfair, pits the majority against the minority, and values their $100 more than his $100.

    I agree that what you describe is what happens, but that does not mean that it is in any sense fair or ethical. Again, they can elect whoever they want, but once elected that person is ethically bound to represent everyone equally – even if it means he gets fired next election.

    What you are suggesting is that the democratic process is inherently flawed because we can ONLY expect to keep as elected officials those with less than perferfect ethical standards: those who will protect the majority more than the minority which does and ought to have equal rights.

  48. the “balance” you speak of is called elections.

    No, it is not.

    The balance I am talking about is equal proetection of each person and each dollar they have, or might have.

    Simply put, 100 people do not have the right to vote save themselves $1 if it is going to cost one person $1000. That values each of their dollars in the social benefit as equal to ten of his dollars.

    Thiere is no election on the face of the earth that makes that a fair or a reasonable transaction.

  49. What you are describing here is a rough outline of TDR programs. And after spending three years creating these programs, I can tell you they will work.

    ==============================================

    No, what I am describing is nothing like the transfer of development rights program, although superficially it seems that way.

    Transfer of development rights starts with the postion that there are a fixed number of such rights. And the number os such rights are determined AFTER oning and other restrictions have already reduced the numer of such rights — without payment, and without any market.

    My plan assumes there is an unlimited market for development, at some price. the problem is how to decide who gets to determine the price. Under TDRs the price is set arbitrarily by some board or government body.

    My plan assumes that the right to develop within the rate of growth that the county capital plan can absorb, is equally owned by all citizens, just as they equally own the roads, and can use any road in the county,providing they are willing to share that use.

    The argument against development is hat the big bad rapacious developers get all the money. My plan fixes that.

    The county planning board decides they will issue building permits for 650,000 sq feet of development this year. Everyone in the county should benefit from that development, or there is no reason to approve it. There are 65,000 people in the county, so every person gets a chit worth 10 sq ft of development.

    A prospective developer brings his plan to the county to have it approved for building regs: drainage, setback, fire escapes, blah blah blah. Once approved he is free to publish his plans and offer to buy enough development chits to build it.

    Those who do not like his plan or do not want any development will withhold their chits, those who could care less, or need the money, will sell.
    If there are two developers, the one with the more valuable project will be able to offer more for the chits he needs.

    Ulike the TDR system, this plan ensures that the most valuable projects get built first. This plan ensures that NOTHING gets built unless enough people think the building is worth more to them than the congestion or other aggravation it will cause. This plan ensures that the PEOPLE decide what gets built and where, and the PEOPLE get a fair cut of the action. They cannot get more than a fair cut, because the developer won’t build if the price demaded for the chits gets too high. The builder gets a transparent system: if he meets the building code and he can buy the chits, his project is approved.

    Conservation interests, even if they do not forestallthe development, can cause the price of available chits to be MUCH higher by withholding their own – scarcity causes non-inear price increases. In the process they guarantee that the county gets MORE money for each project approved. The county gets its money from a tax on the proceeds of selling the chits.

    The downside for conservationists is that they no longer get to forestall development for free by storming a public meeting: if they forestall development they have to absorb the opportunity cost of not selling their chits. Likewise, if the developer cannot buy enough chits, he has to absorb his opportunity cost.

    Thee are no donor areas or recieving areas: anyone can propose a development and offer to buy chits, anywhere. Everyone gets chits and can sell them or not: no need to traipse off to interminable public meetings.

    In short, what this plan does is what Larry’s argument claims to do and does not: it puts a fair price on development, and makes the public an actual dollarwide participant in the decision as to whether a given development is worth more than it costs.

    Although the fundamental concept is vaguely the same, this plan establishes a real market, while the TDR system establishes mainly a bureacracy that enforces the status quo.

  50. The community has MORE rights than him because they have the rights of others added up such that if a road is already gridlocked – they can decide not to make it worse.

    ==================================

    You want to try that in English?

    They have more rights because they outnumber him, but that is just your old argument about MOB rule. But in this case you concede that they have more rights if they add up to more than his rights.

    Which is exactly what I have said all along. What they DON’T have is the right to prevent gridlock just because they don’t like it. What if the developer has a project that is worth so much that he can afford to pay more than the other properties are worth, combined? Net public benefit would clearly indicate the best thing to do is sell out, but according to your reasoning they have the right to refuse his development, even against all logic and economics.

    By your logic they have the right to prevent him from developing, no matter what. Even in defiance of logic, public benefit, and economics. They could still say no to him simply because they want things as they are. they can get away with this because as you claim, he has no rights to develop: his property is inherently less valuable than theirs, and they get MORE protction from government than he does.

    In your own words, you think they have more rights.

    As a matter of fact, they can actually enforce the right you think they have. And they can even enforce them when it makes no economic or social sense, because they don’t have any rules they have to live by. There is no accepted way to add up those rights, as you suggest, but my “development auction” plan does just that.

    ————————————————————————

    “I got mine, was it as good for you, baby?”

    In a sexual context, anyone can see how wrong that is, but in land use, you will accept it as acceptable behavior?

    I agree: if you add up the value of all the rights and the community comes out ahead, so be it. Only you need a market to establish the value. you don’t establish fair value by having 200 people storm a public meeting.

  51. most people don’t understand that if there are multiple connection points, the overall volume will be lower.

    =============================================
    Not necessarly. Studies ahve shown that the pandemonium that ensues at Roman intersections is more efficient than our over regulated system, as far as getting traffic through, goes.

    Heart failure is the hidden cost, maybe.

    But Andrea’s mot telling comment is that the been heres will do ANYTHING to restrict the come heres. Well, OK. Buy your neighbors property, then if you don’t want to build on it, OK.

    But don’t let him buy a lot, same as you did, and THEN tell him his lot is not worth what yours is, that he hasn’t got the same rights to the street as you have. That he is second class and has less rights because you got there first. Or even if he got there first, but you now out number him, you will still usurp his rights.

    That is why my development auction plan works so well: everyone has essentially the same interests in either developing or preventing development, and a fair assessment of what should happenis more likely than if you accept Larry’s premis that some have more rights than others.

    Sounds like a perfectly lousy way to run a free country to me: “lets us start with the assumption that some people have more rights than others, even if exercising those rights cost others more than they save themselves.” Even if exercising those rights is done, as Andrea points out, is a matter of passion rather than sense.

  52. re: ” So you think every government regulation increases the net public benefit?”

    I think they have a process that they follow.

    you don’t agree with it many times but you have nothing to offer in place of it other than insist that they do it your way.

    re: ” The balance I am talking about is equal proetection of each person and each dollar they have, or might have.”

    but the “equal” part does not deny changes. It only says that changes have to apply equally; the law and constitution allows changes to land use – but those changes cannot discriminate.

    re: metro – the govt does waivers… it’s allowed but I’d agree with you more than disagree….in this case.

    re: ” But if the county council takes 99% of the value of your property to retain the present public use of a road (or for any other public use) they have to pay nothing, even though th law recognizes property as a bundle of sticks.”

    the law and constitution give them the right to take your bundle of sticks as long as they treat you the same as others in similar circumstances.

    the locality is responsible for preserving the investment of other property owners taxes in infrastructure. The law – does not entitle you to unlimited use/consumption of publically-funded infrastructure.

    For instance, you cannot get unlimited curb cuts on a property nor can you give your own traffic signal nor can you get your own median crossover.

    those things are provided in the interest of everyone – or not provided for the same reason.

    re: increasing the value of property.

    that’s not the purpose of land use and govt. their job is to provide adequate infrastructure balanced by the taxation they must levy to provide it.

    re: ” your argument is factually incorrect and ethically corrupt:”

    well.. it’s not mine. I’m just trying to say how I think it works in the law and constitution….

    I do believe that winners and losers are created from the provisioning of infrastructure such as roads, water/sewer, etc and also that the opposite can and does occur with downsizing and other land-use decisions.

    I think it’s permitted by the Constitution and I’m not sure how you’d operate in the way you advocate.

    but I don’t think that the fundamental role of govt is to make sure that your property maximizes in value.

    People who develop -accept that premise and they develop properties based on what they know the govt will do.

    In other words – property rights is not development rights.

    your right to develop property is limited to what govt will allow.

    that govt is elected and the courts that decide the issue also operate by majority vote.

    it’s a crappy system but it’s better than the alternative…..

  53. re: ” Again, they can elect whoever they want, but once elected that person is ethically bound to represent everyone equally – even if it means he gets fired next election.”

    and don’t you think out of the thousands and thousands of elected public officials BELIEVE they are acting ethically when it comes to land use?

    In my mind the corrupt ones are the ones in bed with developers…but the vast majority of them are not that way (though I could be wrong).

    I suppose you think if they are in bed with developers ..that’s a “good” ethical thing, eh?

  54. The TIAs for mixed use development is a bit problematic.

    the premise is that mixed-use allows – live, work, play and shop and by having these things co-located that there is “re-capture” of trips that normally would leave and enter the development.

    the problem is that the premise assumes that people will – if given a choice – for example – get the local pizza instead of the pizza 3 miles away… or get their other services from inside the mixed-use area rather than travel beyond it.

    this is tricky business especially for greenfield exurban “smart growth” where a “pod” of mixed use is proposed which, in theory will provide on-site jobs and commerce.

    in reality – there will be SOME “capture” of trips but I’m pretty skeptical that it’s enough so that someone could say you don’t need as much mobility infrastructure than you would if it were not mixed-use.

  55. Zoning changes are deemed lewgal if they apply to all. No owner is guaranteed zoning, but all have rights.
    +++++++

    Zoning and reg changes seldom apply to all
    Existing structures will be grandfathered, maybe for a hundred years or more, whole new structures may be prhibitrf just as long.

    How is that equal zoning?

    Consider my brother. His development rights were eliminated through a change in the setback regulation. He was able to buy sufficient land from a neighbor to meet the new setback rules. End result: same number of housed on the same amount of land as under the old rule. Only the boundary line changed. Cost to my brother, $250,000. Gain to the neighbor, $250,000, less tax. Property taxes, up due to my brothers subdivision. Net social benefit of the setback change, zero.

  56. re: how is that equal

    there’s a legal test for it and all counties know that test.

    as long as new rules apply to all landowners in the same circumstances – they pass the test.

    we have highway corridor overlays down this way. they require setbacks.

    the reason why is to preserve future right of way – which is ..deemed more fair than coming back later and chopping off property.

    by law ( I believe) they cannot take (and compensate) an entire parcel (not sure what the legal reason is)… but both counties and VDOT will take part of a parcel and leave the remainder which is deemed a worse impact than a setback – in general – with obvious counter-examples…

    when roads are widened, improved… often utilities have to be moved also. this is pretty expensive and it’s cheaper and more fair to landowners to prescriptively protect/preserve easements that will be needed.

    but the entire point is that govt is empowered to make such decisions and determinations – and they have to – otherwise we’d not have public roads or power/utility line corridors, easements,etc.

    they have to certify that the easement serves a legitimate public purpose and Kelo put restrictions on takings for private purposes (though not 100%).

    I’m waiting to see what happens when someone – for capricious reasons – coverts their property in a prime growth area to a conservation easement.

    if your property has been whittled away by new regs and the taxes on it are still high – then at some point someone is going to pull the conservation easement trigger.

  57. Consider a neighborhood with half acre lots and one five acre lot. The owner decides he would like to have the same rights as his neighbors: half acre lots.

    But the neighborhood decides his subdivision will cause gridlock, so they exercise their superior rights to prevent this. Never mind how ridiculous it is to claim HIS subdivision would cause the gridlock and he should bear the cost of preventing it.

    Now the owner considers that if he cannot use his land he is better off without it. If the tax rate is a dollar per hundred, he is ahead in 50 years. So he insists on the same rights as his neighbors: one half-acre lot, same as his neighbors. He walks away from the non productive 4.5 acres, and lets it go to the community for back taxes.

    Now, the land is not really unproductive: it produces the lack of gridlock, which everyone enjoys, and now, everyone pays for.

    By rights, should not the community done the right thing, and purchased the 4.5 acres? If that was the choice, would it have changed how the community looked at the cost of gridlock?

    Of course it would, because their prior calculation included no cost to themselves. Who wouldn’t like a deal that costs them nothing?

    Except their ethical soul.

  58. Catch 22. You cannot give a conservation easement unless you have development rights to give away. If the county has already taken all your development rights, they already have an easement, which they did not pay for.

    I ran into this when the power line was planned to come through here. Several of my neighbors rushed through conservation easements, to make it harder for the power company to come. They wanted me to do the same.

    I told them I would be happy to, all they have to do is get the county to give back all the development rights they took, for nothing, so I can give them away and take the tax break. They thought I was kidding.

    They were so desperate to stop the powerline, one of them hired an attorney to look into it for me. They were aghast when I pointed out to them that the best thing that dcould happen to me would be if the power line DID come. That way I would get at least some money, as it stands now, there is no way to get anything, except by cutting the forest. I expect they will take that right away, too, probably, just around the time I finally need the money.

    You could give the land away, in toto, to say, habitat for humanity, and then watch the board try to turn them down. A former fauquier selectman was able to develop a lot something like this. He got habitat to take an option on the land, then he begged the board for special permission to build on the land, which he got. I’m not sure of all the details, but I think he sold the lot to Habitat for below market price, but he got something out of it where he would have gotten nothing.

    The real bear in the woods here is the PDR program in which the county buys development rights and then gives them to VOLF. By buying development rights they have recognized them as valuable property. This gives the lie to the idea they formerly had when they extinguished thousands of development rights, without payment, saying that they were not real, and so they were not required to pay for them.

    Obviously, they cannot have it both ways, and one of those positions is wrong. When there were thousands of rights, they really were not worth much, but they eventually extinguished so many they ran into political opposition, so they started buying them, but now there were so few left, they had to pay a lot more for them. If they had bought them to begin with, they could have afforded toput a lot more land in conservation easement, permanently. Now they have a bunch of land sitting around waiting for new supervisors, instead.

    And, they are giviing away valuable property paid for with taxpayer dollars. If they were buying fire engines or maintenance trucks and giving them away, we would not stand for it. The usual procedure when disposing of surplus county property is to auction it off, but for this purpose, my auction of development rights plan is a lot better.

  59. there’s a legal test for it and all counties know that test.

    as long as new rules apply to all landowners in the same circumstances – they pass the test.

    +++++++++++++++++++++++++++++++++

    Well, that test is FUBAR, too, and the counties know it. It does not affect everybody equally, and the county knows it. It is a bawld faced lie.

    And you can bet that such changes ALWAYS affect the come heres more than the been heres. Except in the case of really long term landowners, in which case the new rules (intended for conservation and NOT to reduce county costs or tax increases, which is a red herring), in which case the rules inordinately affect those who have preserved their land the longest.

    The FACT of such gross and blatant inequalities gives the lie to your statement. In fact, then supervisor Atherton once bragged to me that the county had really smart lawyers who knew how to exactly skate that fine line. In effect, what he did was brag that it was the counties intention to use the rule you cite to create MORE inequalities.

  60. we have highway corridor overlays down this way. they require setbacks.

    I have no problem with that. Will the property loss caused by the setbacks be paid for as part of the highway costs, if they are ever built?

    Lets suppose the highway is built, and then the greedy rapacious landowner wants to do something with his property. Will he get a credit for the setbacks that were taken? Or do we just ignore that and claim he is getting a huge benefit for free from the highway being built.

    Do we allow him that benefit, or do we cynically keep him zaoned for agriculture when he ought now to be light industrial?

  61. It is more fair if someone buys the property AFTER the easement is known. It may or may not be fair to the existing owner when the easement is placed.

    For one thing, he may be stuck in limbo for decades, while public participation decides what happens to him. Any reasonable interpretation would require that some rent be paid to maintain the easement until it is exercised.

    That alone would speed the decision making.

  62. by law ( I believe) they cannot take (and compensate) an entire parcel (not sure what the legal reason is)… but both counties and VDOT will take part of a parcel and leave the remainder which is deemed a worse impact than a setback – in general

    ====================

    That is right, they can take only what they need, leaving the owner with an unusable plot.

    This argument/problem goes away once we recognize all property as a bundle of sticks which must be paid for when wny one of the sticks is taken or damaged.

  63. but the entire point is that govt is empowered to make such decisions and determinations – and they have to – otherwise we’d not have public roads or power/utility line corridors, easements,etc.

    =========================

    They are alos obligated to pay fairly for the effects of their decisions, and they are obligated to protect everyone’s property equally.

    They must pay a faqir amount, but they may not waste taxpayer money either.

    The present system for determining payment amounts is seriously broken. Many other states have adopted reforems that the clown show has so far ignored in Virginia.

  64. and Kelo put restrictions on takings for private purposes (though not 100%).

    ======================

    How do you get that? KELO did just the opposite.

    KELO means that any government can use any measure of an increase in the net public benefit to sieze any property. If the government can find a way to increase the value of your property and get more tax revenue out of it, they can size your property and call that a public use, same as if they built a road or a school on it.

    It is the extreme affirmation of my argument that there is no reason for a regulation that does not increase the net public benefit, because it declares if there is a net public benefit then ANY regulation is justified.

    Including taking your home.

  65. the law and constitution give them the right to take your bundle of sticks as long as they treat you the same as others in similar circumstances.

    ==============================

    The constitution gives no such right. It merely says that property taken for public use must be paid for.

    The law has said that government may not take all or substantially all of the value of a persons property through regulation without paying for it. State and local governments have been required to compensate when this occurs.

    But, that ruling was narrowly argued, leaving open the time whne a case makes it to the supreme court when less than subtantially all the property was taken.

    And the path seems to me to be clear, because the court has ALSO ruled that property is a bundle of sticks, whose value can be separated. This is what allows conservation easments, utility easements, and other kinds of partial sales to occur.

    It is only a question of time before government takes one of somebodies sticks and they make it to the supreme court saying hey, that stick was my property, you cannot take it without paying me.

    All I am saying is that we damn well ought to get smart about it now and start making sure that every damn stick we can think of is recorded in the county book.

    Had we done that, it might have made the disaster that MERS has become, impossible.

  66. Larry
    Andrea – I’m watching Spotsylvania do this and I do not get a good feeling about it.
    ___________________________________________________
    Please send me the contact information for the Planning Director and your Supervisor. I would be happy to travel to Spotsylvania and help them get their program straight.

    Ray
    Transfer of development rights starts with the postion that there are a fixed number of such rights. And the number os such rights are determined AFTER oning and other restrictions have already reduced the numer of such rights — without payment, and without any market.
    ____________________________________________________
    Transfer programs are not dependent on zoning at all. In fact, properties that are zoned will have more credits available than AG property, and the setback issue does not affect the number of credits on a sending parcel.

    My plan assumes there is an unlimited market for development, at some price. the problem is how to decide who gets to determine the price. Under TDRs the price is set arbitrarily by some board or government body.
    ___________________________________________________
    I wish there was an unlimited market for development, but there isn’t. The value of each credit under a TDR isn’t set by the locality in a good program. The value is determined by location (as is all real estate, “location, location, location) and the length and other terms of the easement.

    Although the fundamental concept is vaguely the same, this plan establishes a real market, while the TDR system establishes mainly a bureacracy that enforces the status quo.
    ___________________________________________________
    I set up my programs so that I negotiate with the landowner and agree on the price I pay for development credits. It take the bureaucracy out of the pricing because while the program elements are created with local cooperation, the transactions are done by a private company. But either way, the market is determined by the developers who would purchase the credits from me. If there is need for additional density, there is a market. If there isn’t a need there is no market. And I am not required to purchase and sell credits in the same locality.

    Larry
    there’s a legal test for it and all counties know that test.
    as long as new rules apply to all landowners in the same circumstances – they pass the test.
    ___________________________________________________
    I believe you are thinking of “similarly situated”.

    by law ( I believe) they cannot take (and compensate) an entire parcel (not sure what the legal reason is)…
    __________________________________________________
    They can take the entire parcel as long as they can prove the entire parcel is needed, and they pay for it. They usually only take what they think they will need because they don’t want to pay for it. The problem this creates is the property left over can become practically unusable, but they will say you can still use the property, so they have not stripped away all possible uses.

    I’m waiting to see what happens when someone – for capricious reasons – coverts their property in a prime growth area to a conservation easement.
    ___________________________________________________
    If the locality allows this to happen, they have no idea what they are doing. They can prevent this from happening, but there must be the political will to do so.

    Ray:
    Consider a neighborhood with half acre lots and one five acre lot. The owner decides he would like to have the same rights as his neighbors: half acre lots.
    ___________________________________________________
    The neighborhood with half acre lots and one five acre lot is probably zoned. If the other neighbor wants the same rights, he has to go through the same zoning process. The exception to this would be a zoning ordinance that permits half acre lots in the AG classification. If it does, then the neighbor already has the same rights so long as he is also still AG.

    But the neighborhood decides his subdivision will cause gridlock, so they exercise their superior rights to prevent this. Never mind how ridiculous it is to claim HIS subdivision would cause the gridlock and he should bear the cost of preventing it.
    ___________________________________________________
    The neighborhood does not have superior rights unless the governing body has no political will. If the landowner submits a plan that conforms to the Comprehensive Plan and proffers to mitigate HIS impact, the locality should approve it. If they don’t, they will most likely lose the lawsuit. If the governing body is that weak, they need to go.

    Catch 22. You cannot give a conservation easement unless you have development rights to give away. If the county has already taken all your development rights, they already have an easement, which they did not pay for.
    ___________________________________________________
    Conservation easements do not require development rights, but most property has at least one credit (existing or permitted by right). Some localities have PACE programs where they purchase the easement and extinguish any rights that might exist. But ANY easement is entirely governed by its own language. That language can set up the easement however the landowner and locality want it to and agree to. If a local Ordinance permits what you describe, someone should challenge the validity of that ordinance. The exception to this would be if the easement was in perpetuity (not all of them are) and it was recorded by a previous landowner.

    You could give the land away, in toto, to say, habitat for humanity, and then watch the board try to turn them down. A former fauquier selectman was able to develop a lot something like this. He got habitat to take an option on the land, then he begged the board for special permission to build on the land, which he got. I’m not sure of all the details, but I think he sold the lot to Habitat for below market price, but he got something out of it where he would have gotten nothing.
    ___________________________________________________
    This sounds like someone was trying to create a community land trust? Mainly used to establish and maintain affordable housing. There are a few of these that are very successful and some that are abysmal failures.

    The real bear in the woods here is the PDR program in which the county buys development rights and then gives them to VOLF. By buying development rights they have recognized them as valuable property. This gives the lie to the idea they formerly had when they extinguished thousands of development rights, without payment, saying that they were not real, and so they were not required to pay for them.
    ___________________________________________________
    I don’t understand this. If the county purchased the easement under a PDR or PACE (different from TDR or LDR) the development rights are extinguished. If they purchased the credits ( which are distinct and severable from the property itself) and gave them to any entity, that is a TDR and that entity has the right to use those credits. My question here is when the county refused to recognize thousands of development rights, was that prior to the GA passing the TDR enabling legislation? And, even if it was, how did they accomplish that without compensation?

    The kicker with KELO is that the court accepted the premise that “program of economic rejuvenation” was a public benefit. Essentially saying Eminent Domain could be used for economic development and blight prevention, and created a situation where a private landowner could make a profit. I’m not certain, but I think there has been cases since KELO that affected that ruling?

  67. Well, if you think my property rights ideas are twisted, try this one, an argument against Australiand gereenhouse gas trading.

    “Markets are built on credible, tradable property rights. Physical property rights are definable and can be isolated for the purposes of ownership.

    These dimensions enable them to be traded.

    Even intangible intellectual property rights meet these criteria through their design, but greenhouse gas emissions cannot meet them.

    One person’s emissions cannot be differentiated from another’s. They are the same chemical compounds, whether emitted by another or created naturally.

    As a consequence, imposing a local price in the absence of a global price, when the externality of greenhouses gases is also global, fails the test of economic logic.”

    By that logic, you cannot claim I am polluting your air, because it isn’t yours.

  68. Well, if you think my property rights ideas are twisted, try this one, an argument against Australiand gereenhouse gas trading.

    “Markets are built on credible, tradable property rights. Physical property rights are definable and can be isolated for the purposes of ownership.

    These dimensions enable them to be traded.

    Even intangible intellectual property rights meet these criteria through their design, but greenhouse gas emissions cannot meet them.

    One person’s emissions cannot be differentiated from another’s. They are the same chemical compounds, whether emitted by another or created naturally.

    As a consequence, imposing a local price in the absence of a global price, when the externality of greenhouses gases is also global, fails the test of economic logic.”

    By that logic, you cannot claim I am polluting your air, because it isn’t yours.

  69. I don’t understand this. If the county purchased the easement under a PDR or PACE (different from TDR or LDR) the development rights are extinguished. If they purchased the credits ( which are distinct and severable from the property itself) and gave them to any entity, that is a TDR and that entity has the right to use those credits.

    ======================================

    Good poiint. the county gives them (development rights) to a conservation agency, whose charter forbids them from using or selling them, but you are correct, it is in effect a transfer of develpment rights.

    And, a conservation agency is a corporation. Theoretically there could be some kind of takeover of the board and the whole thing could be sold to a developer. Not going to happen, but theoretically possible.

  70. I don’t think your ideas are twisted, but some landowners and/or developers might.

    “Markets are built on credible, tradable property rights. Physical property rights are definable and can be isolated for the purposes of ownership.

    These dimensions enable them to be traded.
    _________________________________________________
    Exactly!
    But, when the county deeds an easement to a conservation agency, it is a PDR or PACE. The development rights are extinguished in the agreement when the landowner is paid, or when the easement is recorded and therefore they are not transferred to the holder of the easement.

    Your point about the conservation agencies is a good one. I certainly hope these localities ensure that the easements are written so they survive the agency. If they are perpetual, that’s how it is supposed to be done.

    And good point about the air. I suppose the Clean Air Act (that I have not read) assumes the “air” needs to be clean because it belongs to everyone?
    I could argue that certain individuals emissions can be differentiated from others, but I am a lady, and we don’t discuss those things.

  71. re: Spotsylvania and TDRs

    the dialog here demonstrates how loose and vague the concept is.

    I believe that TDRs (and Conservation Easements) as currently implemented actually work against land-use planning. They embed into a fairly rational process of discrete land-use planning – an unfocused and AD HOC approach to land-use planning.

    There needs to be a land-use planning framework that TDRs fit into as an explicit strategy as opposed to the wide-open hodge-podge approach currently in play.

    We’re going to end up with an arbitrary bunch of vacant lands of no particular use.

    Development in Spotsylvania tends to prioritize land for subdivisions – land that backs up to other land that is not developable – like NPS land… water / swamps, etc – including AG parcels in land-use (deferred taxes).

    Deferring taxes on AG land might make sense for AG land adjacent to an existing growth area but what does that mean on a parcel that is basically so far away that it will never really be developed into anything other than a family subdivision anyhow?

    putting such land into a TDR – seems problematic to me. I would assume that the deferred taxes would become due upon the transaction – so why would that benefit the owner if the transaction ended up a wash financially?

    part of this hurts my brain thinking about it – but when even I can see questions that are not yet addressed – by the TDR process… it’s concerning.

  72. Andrea – is there a Virginia “HOW to” TDR Process Doc anywhere?

  73. Larry: I totally agree with your assessment of hodge podge programs. There are three different types of programs. Transfer, Purchase and Lease. They are all different, but they all share the same basic requirement. They MUST be administered by someone that understands the programs and their differences, and there are different procedural processes that have to be done in specific order. They work best when the framework is incorporated into a comprehensive plan. In fact, if a locality chooses to adopt an ordinance (for TDR), they are required to be in the comp plan.
    Another important thing to mention is that these programs are not suited for every piece of property. I have a “Parcel Ranking Procedure” that I use to objectively rate a proposed property to determine its suitability.
    Some localities also use this approach for ranking their PDR or PACE programs (Albermarle, James City, VA Beach) A parcels “rank” determines its suitability and contributes to the value of the severable credits.
    But localities are more limited in what they can offer for easement structure/ terms. The tax advantages of perpetuity are attractive to some, and there is no rollback for purchase programs. But some landowners are leery of perpetuity. I can negotiate different terms, provide landowners some money (once I have reached an agreement with the locality) and tailor a program however a locality would like. Each transaction is unique to the property, but still in accord with the local plans.
    I can also offer a locality different levels of participation. I can go in and set it up for them, hand it over and come home; or I can go in, set it up and run it for them.

    There was a model TDR study that was done for localities in VA. And I think one for the State as well, when they passed the enabling legislation. I’ll try to find them on my other computer and post it, but they are seriously lacking any kind of choice or imagination.

    But I meant what I said earlier. I would be more than happy to take a road trip to Spottsy and show anyone you like how these programs operate, in the proper manner. I understand why you are concerned. I was too, so I created my own programs that covered the details.

  74. My question here is when the county refused to recognize thousands of development rights, was that prior to the GA passing the TDR enabling legislation? And, even if it was, how did they accomplish that without compensation?

    =====================================

    I believe it was prior to the legislation. They made the argument that no compensation was required because no “property” existed in the development rights. The same development rights that they are now purchasing.

    Before zoning, there were basically infinite rights, anyone could do anything that did not precipitate a lawsuit for damages, which had to be proven.

    Zoning then established development rights, or rather maximum allowable development. In rural Fauquier it was originally set to one house per four acres, which was far more than anyone needed at that time. But it established maximum development which affect the value of the land. Some owners immediately subdivided and continued to farm acreage that was a bunch of parcels. Once recorded, these could not be reversed, and many years later some of these peole cashed in.

    Other people did nothing, and over the years the development rights were successively reduced. some areas were downzoned six times. Part of the original zoning was a provision for adminsitrative or family lots that could be subdivided with minimal paperwork. It was a quidpro quo to get landowners to buy in to the original zoning. Incremental successive downzonings removed one “stick” after another. After the last downzoning the county pulled the plug on adminsitrative lots as well. Inan effort to preserve the largest parcels, a sliding scale of development rights was used, such that the largest parcels got proportionately fewer development rights. first thee was a flood plan zone, hen the size of it was increased, and then the county wanted another zone of no building, to protect the flood plain zone. that last one was too much, and hundreds showed up to protest: the supervisors backed away from that one. The sliding scale had the effect of a) treating different properties differently and b) punishing thos landowners that had protected thri land the longest with the most severe restrictions.

    At the same time special purpose zoning overlays and stffer building requirements also reduced potential building. Finally it got to the point where it is next to impossible to buy or get a building lot approved, and it was at that point that the county resorted to buying development rights in order to prevent building.

    Whether or not the original building rights (actually allowable zoning density) represented property, they affected the value of the property, and that value was reduced as the zoning was reduced. In turn, this mad it more difficult for farmers to borrow. (Conservation easments also reduce the borrowing power.)

    My only point is that if they are considered proerty worth buying now, they should also have been then.

    It is a nice point that maqybe they could not have purchased the development rights back then, but they had no intention to anyway. Zhad they asked, they probably wouldhave gotten permision.

  75. You are right.
    I also think you’re describing a different type of taking. I need to give this some thought (and maybe call one of my friends who is also a lawyer).
    I’ll be back

  76. The easements are perpetual. they must be in order to get the federal tax breaks. However, the only thing that makes them perpetual is that they are owned by a conservation agency. Under some circumstances the conservation agency could give back or sell back the easement, say in excahge for a larger easement someplace else.

    In some states perpetual easements are against the law, because they violate the legal precept that someone may not “reach out of the grave” to control his heirs or assigns. no one is smart enough to play
    God forever.

  77. Dynamic Conservation Easements: Facing the Problem
    of Perpetuity in Land Conservation

    “The conventional conservation easement imposes fixed land use restrictions that, unlike the land, the circumstances of the landowner’s life, and prevailing scientific thought, do not change over time.”

    http://lawpublications.seattleu.edu/cgi/viewcontent.cgi?article=1819&context=sulr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Fsearch%3Fhl%3Den%26source%3Dhp%26q%3Durban%2Bconservation%2Beasements%26btnG%3DGoogle%2BSearch%26oq%3Durban%2Bconservation%2Beasements%26aq%3Df%26aqi%3D%26aql%3D1%26gs_sm%3Ds%26gs_upl%3D2344l9547l0l11812l28l25l0l9l2l1l672l3736l0.1.7.2.1.1l12l0#search=%22urban%20conservation%20easements%22

    Mitigating urban heat islands: a role for conservation easements

    http://www.urbanforestrysouth.org/resources/library/Citation.2004-11-03.P215

  78. If you want thelegal answer consult a lawyer, if you want the right answer, consult your minister.

    The constitution merely says that when proerty is taken for public use the owner must be compensated. There are no qualifiers as to amount of property taken or what constitutes a use. it is pretty clear to me tht this means if the government wnats your property, it must pay for it. PERIOD.

    I think of takings as conventional takings, for a road or school or whatever.

    Nonconventioanl takings where the lan is lost to the owner, but no public use is envisioned, indeed the land may simply be transferred to a developer. This is the result of KELO.

    Then there are regulatory takings which may be through zoning restrictions, or changing the zoning, or changing the zoning code to redifie menaings; overly restrictive building regulations; or other regulations restricting activity, imposing environmental conditions, or even requiring certain actions or activites be conducted.

    Any of these may incur real costs to the owner that lower the value of his property. Whatever tht loss of value is, it represents a rent free use of part of the property for government purpose or use, and it ought to be paid for.

    But the worst and most insidious taking is the taking of time and money therough the process of “Adminsitration through Aggravation”: the deliberate process of wearing down an applicant through bureaucratice obtuseness and unhelpfulness, egregious fees and waitng periods, and the old bring me a rock syndrome.

    There are also outright fraudulent takings. this happens when a landowner is bought up on some trumped up charges for violating some obsucre regulation. then the offer is made to “drop the charges” if the owner will enter in a conservation easement.

    And there are friendly party takings, in which a landowner gives up an easement which is designed n such a way that he gets to keep much of his development rights, the easement is mainly for his enjoyment and protection (doughnut easements), and he gets a huge tax write off paid for by others (hence the taking).

  79. The City of Manassas is joining other localities to wage a campaign against a proposed constitutional amendment in the Virginia legislature that will affect everything from whether state roads are built to the city’s ability to shut down streets for its Christmas parade, according to officials and lobbyists.

    The issue at hand is a proposed constitutional amendment that would protect citizens from having state and local government seize property, even if that seizure is temporary, without paying just compensation and only in those narrow cases where the reason for doing so is clearly in the public interest.

    So Manassas taxpayers are going to shell out $1,500 a month so a lobbyist can badger our elected officials to trample our constitutional rights, precisely the opposite purpose for government existence…

    From the Black Velvet Bruce Li blog.

    It seems that localities are not willing to paly fair and want to keep the power they have to destroy value for some people without compensating them for government or community actions which may favor the community, but much less so if the community has topay full price for what they get.

  80. Deferring taxes on AG land might make sense for AG land adjacent to an existing growth area but what does that mean on a parcel that is basically so far away that it will never really be developed into anything other than a family subdivision anyhow?

    ===========================================

    What it means is that the farm famly pays the same taxes as everyone else on their home and two acres. everyone is equal at that point, and the farm owners are probably already paying more than others because their lot is two acres instead o a 2500 sq ft town house lot.

    You cannot rally expect to charge them residential rates for land that is not residential. That is what it means. And even though the farmers pay tax on the AG land at a reduced rate, it is still an amount of money that is in ADDITION to the regular taxes all must pay.

    It is not a break of some kind. Especially since the AG taxes are not dedicated to AG services, but are instead used to LOWER the taxes of more or less landless residential citizens.

  81. The neighborhood with half acre lots and one five acre lot is probably zoned.

    ==================================

    Well, of course it is. It is zoned for half acre lots, but he has not recorded his lots yet, so they are vulnerable. Under the zoning rules he would be eligible for ten lots. But now the neighborhood sees this coming, so they change the rules so that he cannot avail himself of the same zoning process they had.

    Even without changing the rules, they can gang up on him in such a way that he gets disapproved for the exact same land use they got approved for. They get to keep a large vacant area in the neighborhood, and they get to prevent gridlock, and they get to give him the bill.

    The obvious answer is to make the zoning rights property and record them on the deeds at the time of the last zoning change. Znow if you want some lesser zoning to apply, you must first buy bak the old zoning, because it represents real value in the property, and is therfore property itself: if nothing else it si collateral you can borrow against.

    Bottom line is, that unless he gets the same approval that they got, then he did NOT get the same zoning process.

  82. the law and constitution give them the right to take your bundle of sticks as long as they treat you the same as others in similar circumstances.

    =============================

    The law presently makes this possible, but it does not give them the right, just the power. Neither does the constituteion give then the right to take a stick, sisnce a stick is property and the constitution says that property taken must be paid for.

    That law will eventually get overturned because IT IS WRONG as presently administered. It will get changed a lot sooner when fatheads stop trying to defend the indefensible. What is happening to some people is WRONG and it needs to be stopped.

    It is going to take a long time to get overturned because it is next to impossible to get due process on zoning matters.

  83. re: increasing the value of property.

    that’s not the purpose of land use and govt.

    =========================================

    Of course it is. or at least it is NOT the job of government to get in the way. No regulation is justified unless it can show a net public benefit, and what is that except the sum of the value of all property, public and private combined?

  84. I think they have a process that they follow.
    =====================================

    Maybe, but it is grossly insufficient AND it is not transparent, consistent, predictable, or reproducible.

    WE need a much, much, much, much better process.

  85. We’re going to end up with an arbitrary bunch of vacant lands of no particular use.

    ============================================

    We are not going to wind up with them. They will be in private hands, probably wealthy ones, and with “guaranteed” lower taxes forever.

    We will get some environmental service benefits from them. The question is whether the value of those services is greater than the cost in tax revenue and lost property values. If they are not greater, then the PDR process produces a net public loss and the idea is a bad one.

  86. Landowners can always elect to build something that is permitted by the existing Comp Plan and zoning. They still need site plan approval and must comply with any other applicable laws and regulations.
    There is no right to have the Comp Plan changed or to receive additional density beyond what exists. The state supreme court has held that, so long as a landowner can develop property to a permitted use, the landowner has not been deprived of its rights. In a 1999 case, there were two possible zoning classifications for the land at issue (agricultural and residential, which the landowner was seeking). In such instance, the BoS was permitted to chose between the two. The justices upheld the lower court’s decision affirming the BoS’s refusal to grant rezoning to the landowner, whose proposed residential development would have a negative affect on traffic and public schools and when the applicant failed to agree to proffers sufficient to address those negative impacts.
    Good land use policy requires balancing of interests.

  87. Tmt is all wet on this. And so is the state supreme court. By this logic, they could zone you for a buggy whip factory and claim you had some permitted use.

    If the land is worth $8000 an acre absent the agricultural zoning, It cannot be farmed profitably. Requiring it to be farmed and allowing only AG uses under these conditions amounts to regulatory taking. It is zoning for buggy whip manufacture.

    You have a use. So what, if the use is worse than useless.

  88. Tmt is fixated on the case of increased zoning, because of his proximity to Tyson’s.

    The arguments I have been making do not apply to someone who bought property fully aware of its zoning limitations.

    My arguments apply only to the Case in which am owner faces restrictions newly placed on his property, and often because of the actions of others. The argument tmt makes, that HIS new development would have an adverse affect on property does not fly. Every development before him also had an adverse affect on traffic, but only his property has to pay the price.

    The way to look at this is that earlier developers
    Are renting his land for the purpose of keeping use of the streets at an acceptable level.

    Only, through zoning, they don’t have to pay the rent. My remarks do not apply to someone who wants more zoning than his neighbors, only to the situation in which he cannot have the same zoning as his neighbors.

  89. Consider this. Conservationists love conservation.easements because they are BETTER than zoning: they are permanent. But it is perfectly ok to change the zoning on anyone else because government has the RIGHT to change the rules. Just not for conservation easements.
    Just like buying person after previously declaring details delopement rights as valueless, one connotation have it both ways.

    If government can change the rules and take substantial value without compensation, it is only a question of time until government takes a conservation easement without compensation. And the will do it with case law precedent the end ironmentalists created.
    The idea that conservation land gets ultimate protection and no one else gets any is an assertion of unequal rights and unequal costs.

  90. Good land use requires balancing interests.

    I agree. Where is the book that tells me how that is done? There is none.

    In one location too much additionally traffic is 500 trips per day, and in others it is one trip per day.
    My auction method finds that balance. I know of no better way ..

  91. Balance interests. Ok.

    If I was allowed the same density, on average, as my ten nearest , if I was allowed too have what they hav , then I would be several million richer on paper, without ever actually building anything.

    You think I have balance with my neighbors? How would you decide? If I have the dammed thing as them, does that degrade them somehow?

    Gao says there is no reason for a regulation that does not increase net public benefit.

    You say we need balance, which is pretty nearly the same thing.

  92. Even without any additional density, if I simulation replace this aging farmhouse with a modern mansion five time the size, that alone might be worth a few million. No zoning change required and no subdivision.

    I seriously doubt I could get permission.

    Now, you want to talk about balance and how we measure it?

  93. Ray – I understand and respect the idea that you disagree with the Virginia supreme court’s ruling. However, that is the law in Virginia. Cities and counties are not required to change the Comp Plan and zoning because someone wants to develop his or her land. Where there are more than one permissible use for land, local government gets to decide which use is best so long as the decision passes the fairly debatable test.

  94. OK.
    Ray:
    I clearly understand what you are explaining. I don’t know when “back then” was, but I can promise you that most of what you describe would be illegal today because existing zoning/uses are usually protected or “vested” from subsequent ordinance amendments or map changes. And, if those zoned properties have proffers the locality is forbidden by law from down-zoning them.
    Not all easements are in perpetuity. Easements that are held or co-held by localities and/or conservation organizations usually are. However, those are not the only entities permitted to co-hold easements. Easements can range between 5 years and perpetuity, and this provides flexibility and prevents property that should be developed in 50 years from
    acting as a future doughnut hole.
    Ditto to TMT’s last post.
    This might sound like a strange question, but when was the last time the Planning Director and Supervisors changed? i am asking because I’m thinking you might have better luck with new officials?

  95. would be illegal today because existing zoning/uses are usually protected or “vested” from subsequent

    ==================================

    Nope.
    Only if the use actually exists.

    If you have land zoned but not platted for ten lots it might be worth $800,000. Zoning could change that and increase the lot size so that you can now get only five lots. Your land is now worth only around $600,000, and the county owes you nothing.

    Even if you plan to do nothing with it but farm, this seriously affects your ability to borrow against the property for operating purposes.

    Your neighbors, who previously subdivided and built their homes are also subject to the new, larger lot size, but because they are already platted and built, they are grandfathered. If the house is totally destroyed, they might not be allowed to replace it because of the new lot size requirement, but practically speaking that seldom happens and in any case they do not suffer the loss in value that you do.

    That is what is wrong with Larry’s cynical claim about how zoning officials can do what they want as long as it applies to everyone equally in an area. In fact it does not apply equally, and only affects new development.

    Zoning and conservation folks will argue that you did not lose anything, because the lots never existed: were not drawn on paper and recorded. Therefore you have suffered no loss and the county owes you nothing. Nevertheless, as you can see above you have suffered a real loss in dollars, which I normally count as property.

    If you had drwan and recorded the lots, then you WOULD be vested and the new zoning would not be retroactive, but even that is presently uder attack, and some jurisdctions have moved to nullify current vacant lots in order to prevent future density.

    My suprvisor is up for election this fall, and the choice from my perspective is between bad and worse. Nothing is going to change the political climate here for the forseeable future. Fauquier is famous across the nation for its conservation efforts and it has been noted in published stories that this is due in a large part because there are lots of wealthy people who want things a certain way.

    I know that temproary easements are possible, but they do not get the same tax treatment as permanent ones, and I have never seen one happen, except for things like membership in a forestry district, which is a temporary commitment.

    I will say it again before EMR or the other iitials jump down my throat. This has nothing to do with my personal situation or plans. I only use it as an example because it is one I am familiar with and I can see how unfair the present situation is. It got that way through a certain line fo thinking, and that line of thiking has been replicated in many places, therefore the same kinds of inequalities and injustices are perpetuated in many places.

    When I lived on Martha’s Vineyard I saw the same events happening there, to the same classes of people and for the same “reasons”, whichI consider to be faulty. What is happening to some people is simply wrong, and it is being allowed to happen because we have put too high a value on conservation, preservation and, frankly stasis.

  96. Cities and counties are not required to change the Comp Plan and zoning because someone wants to develop his or her land.
    ===========================================

    I have not suggested that, and that is not the issue.

    If you do want such changes the county will mostl likely insist that you pay them with proffers for the increased value of your property.

    That I have no problem with.

    Where I have a problem is where some kind of public benefit is GAINED by causing a loss in value through new restrictions on your property. If you get a gain in value thay want you to pay, but if they cause a loss in value they are obligated to pay nothing – under present law.

    That is simply wrong, and anyone ought to be able to see that. And in fact other places have put in place new rules to prevent such crass activity on the part of government.

    We should do the same here.

    Of course, if we had such rules before the Comp plan went in place, then the comp plan would probably look a lot different, wouldn’t it?

  97. ” That is what is wrong with Larry’s cynical claim about how zoning officials can do what they want as long as it applies to everyone equally in an area. In fact it does not apply equally, and only affects new development.”

    well.. it’s not my “claim”. I’m only explaining the logic behind the law and the Constitution.

    It’s the way our system has been set up.

    but without the ability to make such changes, no new changes would ever be possible….. right?

  98. Grandfathering the existing is a very common part of regulation. When the Feds made seat belts in cars mandatory, they didn’t make owners of older cars put in seat belts. Ditto with catalytic converters. But they could not sell new cars without the safety equipment.
    When a county adopts a floodplain ordinance, it doesn’t make existing homes move. But they cannot build new homes or expand existing ones. Landowners at Tysons can elect to stay under the prior Comp Plan and zoning. But they don’t get the new density limits contained in the new Comp Plan.
    When government tries to make regulatory changes without grandfathering, it often results in strong backlash.

  99. well.. it’s not my “claim”. I’m only explaining the logic behind the law and the Constitution.

    There is no logic behind the law as it is set up, except the logic that basically allows those that have developed to steal from those that haven’t. That is the logic: it is pure greed, and it is wrong.

    And it is not what the Constitution says the constitution just says if you take something for public use, you must pay for it. No qualifiers, no disclaimers, no exceptions.

    Now just try to explain to me how we got from that one simple statement, easily followed, to the morass of regulations and laws we now have, all designed to short change someone.

    Four words, devoid of ethics:

    Lawyers and Special Interests.

  100. without the ability to make such changes, no new changes would ever be possible….. right?

    ============================

    Jesus Larry, how many times have we been through this and you still don;t get it.

    You can make all the changes you want, if you think it will improve things generally.

    You just have the pay the losers you create for the damages they incur.

    By itself, followint that one rule will virtually guarantee that no changes will be made UNLESS they improve things enough for the winners to pay off the losers and still come out ahead.

    That is the definition of positive net social benefit.

  101. Grandfathering the existing is a very common part of regulation.

    That is not the issue I am talking about either, except when it is used as a false explantion of how everyone is being treated equally.

    When a county adopts a floodplain ordinance, it doesn’t make existing homes move. That is grandfathering, andI have no problem with that.

    But knowing that a home may not be replaced is going to significantly affect its value. The public that benefits from the flood plain is getting a public use by taking the value of property and not paying for it.

    Suppose you bought a nine acre property in an area zoned for 5 acre lots. Now you are saving up for your river home. Then a flood plain zone is put in and it eats up five acres of your 9 acre lot. Now you no longer have 5 acres that are not in the flood plain and since you must have a five acre minimum lot, you cannot build.

    Your neighbor on one side also has a nine acre lot, and he wisely built on the highest portion of it. And fortunately for him the flod plain designation only takes four acres of his lot, so he gets off relatively scott free, althoughthe value of his property is STILL reduced without compensation.

    Your neighbor onthe other side also has nine acres, also has built already, but the flood zone takes 5 acres of his land, so he now has a nonconforming use. he is grandfathered, but if he ever loses that home, he maynot be allowed to rebuild it.

    Some jurisdictions that have put in flood plain requirements work withthe owners to reduce or eliminate such problems, and other jurisdictions just say tough toboggan. They got some density reduction through imposition of the flood plain regulation and they took it.

    Without any compensation or any attempt to ameliorate or eliminate the losses. The governments primary job is to PROTECT people and their property, and in these cases they are not doing their job, just the opposite, in fact, and we ought not to stand for it.

  102. If you are the guy withthe nine acre lot he can no longer build on, you have lost nearly but not all the value, and under present rules the government owes you nothing. All they have to do is allow you some kind of use.

  103. I think there is one important distinction that needs to be made. The point Ray is making is based in part on a subdivision ordinance, and the rest of us are focusing on zoning. Zoning gives you the legal vested use in property and subdivision can indeed lessen the ability to develop that property, although the purpose of a subdivision ordinance is to address the division of land ONLY. I think many subdivision ordinances need to be revised to ensure the regulatory issues are addressed through zoning. That would prevent some of what Ray is describing.
    But, if you have a 9 acre lot that was recorded prior to the ordinance amendment, you should be able to develop that lot. If you have a legally nonconforming use, as long as you don’t abandon that use for 2 years, you can enjoy it indefinitely. I don’t know the regs where Ray is, but it isn’t unusual to have the ability to rebuild if the non conforming use is destroyed by an act of God.
    I could make a decent argument about whether or not the public benefits from a floodplain ordinance, outside of the property in question, but that is a topic for another day.

  104. And, most localities have some form of exception process. If your buildable acreage is reduced to four acres, and the zoning requires five acres, you could also apply for an exception, prove you have a unique need for the exception and build your house. You can request an exception to ordinance requirements, but they can deny the request. If they deny the request arbitrarily, sue them.
    ???????????????
    But I stand by my point that if a property has been zoned for a specific use at a specific density with proffers, they are going to have a hard time prohibiting what that zoning permits. If they do, sue them.
    I understand the point about lawyers, but I happen to know a few that are the most adamant protectors of property rights.

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