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A Small Victory – So Far – for Common Sense and Flood Mitigation in Virginia Beach

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sherlockj
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The central Great Neck Corridor drainage system Virginia Beach

by James C. Sherlock

Sometimes things work. Perhaps they will this time.

There was a time in Virginia Beach when a partnership between a developer and a church to build new houses would have breezed through the Planning Commission and the City Council.

That kind of open season on clearing and building on Virginia Beach’s very low-lying land brought with it lots of problems, including flooding.

The citizens of Virginia Beach, tired of flooding in every heavy rain and even under a clear sky with a full moon, a couple of years ago passed a very large property tax increase on themselves to create a huge pot of money to deal with it.

One of the natural flood control systems already in place is a series of contiguous lakes along Great Neck Road in the eastern part of the city. They handle runoff from that major corridor. That system flows into the Lynnhaven River and the Chesapeake Bay.

To that place comes a developer and a local church with a proposal.

The church owns land on which sits one of those lakes, Lake Conrad 2. You can see in the overhead imagery view below that the lake dominates the two parcels to the north (left in the picture below) of the church which are the land proposed for rezoning, sale and development.


The property has been zoned for religious use and untaxed for 60 years, representing a huge city investment in the property in forgone tax revenue.

The church has now applied for the two parcels containing the lake to be rezoned residential for subsequent sale to the developer.

The developer then plans to fill in Lake Conrad 2 to build additional homes and offers no mitigation of the filling in of the “water feature” on the site. Note from the overhead shot above that the lake is a natural feature, not a construction borrow pit.

That drainage for runoff from the building and parking lot was likely what allowed the church to be built in the first place.

Courtesy https://www.change.org/p/don-t-make-a-mistake-with-our-lakes

 

The planning commission staff somehow, in its positive recommendation on the church’s rezoning application, found that the proposal complied with the city’s Comprehensive Plan.

The Comprehensive Plan identifies this site as being located within the Suburban Area. The general planning principles for the Suburban Area focus on creating and maintaining great neighborhoods through stability and sustainability; protecting and enhancing open spaces….

Achieving these goals requires that all land use activities either maintain or enhance the existing neighborhood through compatibility with surroundings, quality and attractiveness of site and buildings, improved mobility, environmental responsibility, livability, and effective buffering with respect to type, size, intensity, and relationship to the surrounding uses.

The proposal to subdivide the parcel would not create any conflicts with the Comprehensive Plan. [emphasis added].

The site photos accompanying the church’s proposal do not show Lake Conrad 2. It must have been an oversight.

The church rezoning request is not independent of the agreement with the developer. The developer’s site plan is a sine qua non of the entire deal. And he has admitted (above) that he cannot avoid filling in the lake for the “financial viability” of the project. A look at the overhead view shows why.

The Zoning Commission, with due consideration of the recommendation of its staff, rejected it and denied the application.

Planning Commission action is not a final determination regarding the application, but only a recommendation to the City Council of the viewpoint of the Planning Commission.

A petition opposing the rezoning is gathering thousands of signatures, including mine.

Bottom Line. The City Council has been dominated by real estate interests for literally as long as I can remember. The realty firm involved for the church as well as the developer itself are two of the real power brokers in this city.

But I am cautiously hopeful that this time the City Council will vote to confirm the Planning Commission decision and deny the permit.

The vote is on September 19th.

Updated Sept 1 to eliminate discussion of Corps of Engineers interest due to a recent Supreme Court decision.

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Comments

33 responses to “A Small Victory – So Far – for Common Sense and Flood Mitigation in Virginia Beach”

  1. Nancy Naive Avatar
    Nancy Naive

    The terrain in VB, unlike Maui, isn’t conducive to fire. Flood is just about their best hope for relocation efforts and suburban renewal.

  2. Stephen Haner Avatar
    Stephen Haner

    Do we or should be include unwise property development in the definition of “human-caused climate change?” Likewise do we or should we include arson-caused fires in that definition? Because I think these are the debates and the mitigation discussions we should be having. In these and similar cases the enemy is indeed us. 🙂

  3. Stephen Haner Avatar
    Stephen Haner

    Do we or should be include unwise property development in the definition of “human-caused climate change?” Likewise do we or should we include arson-caused fires in that definition? Because I think these are the debates and the mitigation discussions we should be having. In these and similar cases the enemy is indeed us. 🙂

  4. StarboardLift Avatar
    StarboardLift

    Fact is that the only question before the Planning Commission was whether the Planning Dept staff has done its job correctly. Staff recommended allowing a CUP change so that the church can sell a parcel of land. This was a property rights question, and there was no codified reason to prevent the church from doing this. Instead, the commissioners were derelict in duty. I was surprised the City Attorney didn’t intercede. With the exception of 3 commissioners, they’ve all failed to understand their assignment.

    You may not want the pond sold or filled in or new homes built, and you’ll have your chance to protest that later at the appropriate stage of process. It is not OK for PC to deny a CUP application because they fear some eventual outcome. Word is City Council is aghast at the Commission’s overreach, and thinks they’re vulnerable to legal action or dismissal.

    1. Windy C Avatar
      Windy C

      I would like to correct your understanding. The Planning Commission was under legal advice. They were fully aware that this is not just a church removing a church use. There is a Contract Purchaser who has already in fact been processed through the ACE & DEQ to fill in the lake. The attorney for the church and developer (he represents this builder regularly) presented the statement that there would be an opportunity for the public to object to the lake infill later, but this was untrue. This is why the attorney for the Planning Commission made it plainly clear during their informative and informal sessions that this was the ONLY forum for objecting to the infill project. They were hardly derilict. They were presented with a complex land use issue, visited the site in advance, recognized that the church was working FOR the developer in removing the CUP, and said they disagreed with the project by their NAY vote. They do in fact have a right to vote one way or the other. Did you wonder why this had to come for a vote in the first place? Its because leadership has that right and they have that power. Subsequent conversations to City Council are what we expected–to make cases like this. It is entirely untrue to say there was another chance for the public to weigh in. If City Council is not going to hear us, if they aren’t going to exercise their POWER, it won’t be because we didn’t try.

      1. Windy C Avatar
        Windy C

        I wonder about your statement that the PC one job was to verify that the Planning Dept did their job. We have actually had to point out inaccuracies in the application and point out the photos of the area only showed the high ground and failed to mention the permanent public easement that runs across the parcel. But I don’t think it’s PC job to make sure the PD is doing their job. They could have the City Manager do that, right? And the statement that Council is aghast–that is very interesting. We have met with the MAJORITY of them and they are very opposed to the lake being filled in and they know this is their only opportunity to exercise their right to vote on the subject of whether the land can be returned to residential housing (what it was prior to storm drains being installed and substantial tax payer investment, prior to decades of explosive growth, and well before builders considered water fair game…

        1. StarboardLift Avatar
          StarboardLift

          You’re pleased with the status because you don’t like the project that you fear might ensue. I am displeased with the failed process, because next time it may be YOU who is blocked from selling or modifying your property because someone expresses opposition. I do not like the cart-before-the-horse grandstanding I witnessed.

          The city has professionally trained staff and a City Manager paid by taxpayers. They create Comprehensive Plans, work with Economic Development, and review applications for changes in zoning and conditional use. Voters elect representatives to serve on City Council, Council gets to approve or deny measures that come before it. Virginia Beach has placed a third layer, Planning Commission, in the middle. Its members are neither elected nor professional. They either affirm what Planning Dept professionals recommend or not. That’s the system.

          The Commissioners jumped to judgment on all kinds of complicated issues of land use, storm water, sea level rise, faulty foundations of future houses…without the benefit of proper and full expert opinion. Bishards’ contract is subject to a period of due diligence during which environmental & engineering matters would be explored–no one spends $ on these until they have at least a chance of a project moving forward–and most likely Bishard would end up walking away. The church would then be free to do something else with its parcel, say, sell it to the City as a park. That is letting the proper process run its course.

          Several City Council members were aghast that the Commissioners opined on more that their assignment. While those same Council members may plan to vote against the CUP if it comes to them, they understand the system, and were surprised that the City Attorney (who represents the City, not Planning Commission) did not act as a procedural resource to correct their course.

          1. Windy C Avatar
            Windy C

            This process to buy this land and explore its feasibility started in 2020. So there is no “cart before the horse grand-standing” happening. This is the ONE and ONLY opportunity for the PC and CC to vote on the issue which is tied directly to the infill of this lake. The PC has TWO land use attorneys on it who visited the site and others who made sure they were very well-versed on the complex issue. They spend informal session being versed on their options by their PC attorney. And this past Tuesday our CC was versed by THEIR city attorney. And I for one, don’t need an attorney to tell me that I have the right to use every legal means that I have available to me to express my fear of the mistake that filling in one of VB’s stormwater management facilities might do to the Great Neck corridor and my property. Everyone knows this is a problem in the city. And the new district run city council has the right to vote AYE or NAY.

  5. LarrytheG Avatar
    LarrytheG

    Keep this in mind also: https://uploads.disquscdn.com/images/b132798f4ef763a46c37844c1e8dc48f021be056968c03127b1a2b32da8da591.jpg

    1. WayneS Avatar
      WayneS

      I was thinking the same thing. A dam or outlet structure could be interpreted as interrupting the “continuous surface connection”.

    2. WayneS Avatar
      WayneS

      I was thinking the same thing. A dam or outlet structure could be interpreted as interrupting the “continuous surface connection”.

    3. James C. Sherlock Avatar
      James C. Sherlock

      You are right. That slipped my mind.

    4. Windy C Avatar
      Windy C

      The ruling goes on to say that land owners cannot carve out waterways by constructing manmade barriers to then fill the water way in. That will apply to this situation as that is exactly what this developer will have to do. He will have to construct a barrier to stop the flow of water that continues over this spillway on a regular basis.

  6. WayneS Avatar
    WayneS

    Note from the overhead shot above that the lake is a natural feature, not a construction borrow pit.

    I agree with your concerns, but one thing Lake Conrad 2 is not is a natural feature. There are only two natural lakes in the Commonwealth of Virginia: Lake Drummond and Mountain Lake.

    That being said, that lake provides at least some level of stormwater control for drainage from the surrounding area, and it should not be allowed to be filled in without 100% mitigation.

    1. Nancy Naive Avatar
      Nancy Naive

      It’s more of a pond than a lake. Probably the result of a substrate collapse thousands of years ago.

      I recall a lecture where TJ, aside from believing 3-toed sloths might still be found out west, was convinced the buffalo lived on the east coast at one time because of features found in the Williamsburg area aptly named “buffalo wallows”. They weren’t, of course. They were places where the limestone had washed out leaving dents.

      1. WayneS Avatar
        WayneS

        That lake/pond is man made. It may have been made a long time ago, but it is definitely man made.

        It’s partially obscured by the blue-highlighted boundary line, but on the photo you can just make out the small dam/pipe/structure which separates it from Great Neck Lake below.

      2. WayneS Avatar
        WayneS

        That lake/pond is man made. It may have been made a long time ago, but it is definitely man made.

        It’s partially obscured by the blue-highlighted boundary line, but on the photo you can just make out the small dam/pipe/structure which separates it from Great Neck Lake below.

        1. Nancy Naive Avatar
          Nancy Naive

          Oh yeah, you can see it, a small land bridge. Same is true in Lake Smith. Used to fish there as a kid. Rent a boat in Lake Smith and portage over into Lawson lake.

          1. WayneS Avatar
            WayneS

            I fished Lake Smith as a kid, too. Lived about a mile from it.

          2. Nancy Naive Avatar
            Nancy Naive

            I lived on Pretty Lake, which was not a lake, but then it was EOV so little details escaped the inhabitants there.

          3. WayneS Avatar
            WayneS

            Pretty Lake. That’s Norfolk, right? Ocean View.

          4. Nancy Naive Avatar
            Nancy Naive

            Right. East Ocean View. I messed up. It’s Pretty Lake, which is neither. There, a much better description.

        2. James C. Sherlock Avatar
          James C. Sherlock

          I was out there today. See my reply above.

        3. Windy C Avatar
          Windy C

          Lynnhaven River dammed off. Natural Wetlands.

    2. James C. Sherlock Avatar
      James C. Sherlock

      I did not name it a lake, the City did. But I contend it is a natural feature. Look at it. It is water filling the natural contours of the land. I suspect that the earthen separation between lake Conrad and the much larger Great Neck Lake and again between GN Lake and the Lynnhaven River are man made with fill to bridge them or to serve as dams to help them hold more water to serve the pig farms that used to fill what are now developed areas in that spot.

      1. WayneS Avatar
        WayneS

        Your argument is with geologists and cartographers, not with me.

        I simply relayed the facts regarding natural lakes in Virginia.

      2. Windy C Avatar
        Windy C

        You are spot on.

    3. Windy C Avatar
      Windy C

      Partially true. It is a natural water feature. It was originally a finger of the Lynnhaven River that was dammed off for irrigation and residential purposes. So it is a natural waterway but with a manmade barrier. The SCOTUS just recently banned sectioning off waterways in order to fill them in.

  7. WayneS Avatar
    WayneS

    By the way, Mr. Sherlock, how many lots/houses does this guy think he can fit on that property?

    And don’t be too upset by the staff report. What they wrote is true based on the general language in the Comp Plan. However, that does not necessarily mean they are saying the proposed development is appropriate or viable.

    If you are planning on getting involved in opposing this thing you’ll need as much ammo as you can gather. Start looking for weaknesses that make the project unviable from a city or state regulatory standpoint.

    Obviously, the destruction of an existing lake is the primary flaw, especially since planning for flood mitigation is at the forefront of everyone’s mind. With any luck, that will be enough for the city council to deny the rezoning.

    If not, then you’ll need to start finding ways to limit the total amount of development allowed on the 3.88 acres. One thing to look at is site access. I don’t have access to any scale drawings, but based on the location and configuration of the proposed development parcels, it looks to me like any new entrance or intersecting street to serve the project is going to be pretty close to several existing entrances and intersections. Does Va. Beach have any minimum separation requirements for entrances along roads and streets? If so, look into whether they will be able to meet those requirements or if they’ll need a waiver. If they need a waiver, oppose it for traffic and safety reasons. Also emphasize the Level of Service (LOS) ‘D’ at road capacity on Great Neck Road.

    It’s a relatively small site and they will be trying to maximize the number of units they can build, so keep a close eye on storm-water management issues. Even if they are allowed to destroy the lake, they must mitigate the increased runoff from the new development -that’s state law. They will face engineering challenges on that front.

    Sorry for the long post. I have not worked the opposition side of a proposed development in a long time and it piqued my interest.

    CORECTON: I have made an embarrassing mistake. This is not a rezoning, it is a CUP amendment. Council may be legally obligated to allow the amendment, but you can still oppose the level and intensity of the development itself.

    1. Windy C Avatar
      Windy C

      12 houses. And yes, the one and only time this will come up for a public hearing is to remove the church’s conditional use permit. So its the only opportunity we have to share our objections. Otherwise like you said, if there are any variances.

    2. Windy C Avatar
      Windy C

      https://uploads.disquscdn.com/images/fab47dad1eb0b51816f042d5cfd001767b8e88101f886181293a809cd02001a5.jpg
      What is missing from this photo is the Public Permanent Drainage Easement that runs through it.

  8. James C. Sherlock Avatar
    James C. Sherlock

    Interesting points made. I wrote this because it pisses me off. The church has taken 60 years of property tax exemptions. I went by there today. It is an absolutely Sylvan spot. The City should buy it for a park.

    At the end of the day, the City Council members are politicians. The popular opposition is the biggest I have seen since light rail. They have found imaginative reasons to approve projects. They can be equally imaginative to block one. It will be interesting to see what happens.

    1. Windy C Avatar
      Windy C

      I appreciate you taking the time to visit the site and to fully understand what is happening here. You really nailed it and you brought me to tears. Not only has the city foregone hundreds of thousands of dollars in the church’s real estate tax exemption, BUT they have paid hundreds of thousands of tax payer dollars by recently dredging this lake, removing trees, and fixing up the A-frame building after renting it for several decades. Where is our tax-payer’s return on that investment? You are spot on that this should be condemned for eminent domain and created into a stormwater park like the $60M one in Bow Creek and the retention expansion and reforestation underway in Ashville Park. Unfortunately, it appears City Council is going to grandstand on this one “we don’t want lakes to be built on but we have no choice.” They do. They can pass legislation now that prohibits our natural wetlands from being used for infill development.

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