Bacon's Rebellion

Democracy Thrives in Sunlight

Empowering NIMBYs, Accelerating Sprawl

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by

James A. Bacon
in ,

Here’s an idea I never would have expected to see coming from a Republican lawmaker: Lt. Governor Bill Bolling is backing legislation that would make it easier for citizens to appeal land use decisions they don’t like. In a recent e-mail, he writes:

Under current Virginia law, citizens can appeal an adverse land use decision by a local governing body to the Board of Zoning Appeals, and ultimately to the Circuit Court. However, if the citizen prevails in such appeals there is no mechanism for them to recover the costs they incur as a result of the appeal. Because these appeals can be very expensive, the lack of a cost recovery process serves as a deterrent to citizens in appealing adverse zoning decisions, even if those decisions adversely impact their private property rights.

To correct this, I will support legislation to enable citizens to recover the costs associated with such appeals from the local government if their decision is reversed by either the Board of Zoning Appeals or the court.

Superficially, it sounds appealing to empower individuals in their David-vs.-Goliath battles with big developers. On the other hand, Goliath isn’t always the bad guy. I’m not persuaded that we need to strengthen the hand of NIMBYs in Virginia.

If enacted into law, this proposal would make it exceedingly risky for anyone who wants to vary from the approved development template codified in municipal zoning codes and comprehensive plans. Rather than invest time and resources into creating more livable communities that require special zoning variances, developers will be more likely to pursue by-right development. In most municipalities, by-right development will lead to more scatteration, more low densities, and less connectivity between development pods. In effect, this proposal will perpetuate — nay, accelerate — the inefficient human settlement patterns that ruin quality of life and drive up the cost of government.

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  1. Anonymous Avatar
    Anonymous

    Is is really that untypicable Jim?

    What’s not clear to me is the outcome Jim describes. It’s possible, but I’d like to see a history of the type of appeals that have been made.

    What’s the story behind the bill? Who asked Bill to introduce /who is Bill triyng to project and what type of appeals have they been making and on what grounds.

  2. Anonymous Avatar
    Anonymous

    Bolling is switching into campaign mode….he must have seen a poll or something……

    Oh well, the anti-everything crowd has always gone to th R’s…..nothing new here, move along, move along.

  3. Larry Gross Avatar
    Larry Gross

    Why do the R’s seem to gravitate towards issues that are divisive and controversial?

    There are plenty of “meaty” government issues that they could put the mental might to use on that would gain them respect and admiration and even votes over our tax&spend folks.

    It’s this kind of “politicking” that convinces me that the R’s are really not interested in GOVERNING but rather swinging an AX over their heads to prove their manhood or some such.

    These guys are a bunch of jerks as far as I am concerned.

    No Warner and Kaine are not the greatest thing since sliced bread and yes they have shown some tendencies towards partisan pettiness also at times…

    … but the R’s seem devoid of GOVERNANCE and good government ideas and gravitate towards what they apparently think are good “wedge” issues…

    no.. I take it back.. not jerks.. ….. grade A dumbasses ..

    If this is their idea of fiscal responsibility and leadership.. then they deserve to be a declining presence

    grump.

  4. Anonymous Avatar
    Anonymous

    Why would this necessarily apply to the Nimby’s?

    Couldn’t it also apply to the small guy that got turned down? If the county thinks their case is thin, and they might have to pay the guy’s cost if he appeals, then they might no be so heavy handed.

    See Marc fishers column today:

    “For more than a year, Richard Lucas has been trying to win permission to cut through his elderly, infirm parents’ front porch so they can get from their living quarters onto the street without climbing stairs. And for more than a year, the D.C. historic preservation authorities have found reasons to say no to a ramp. “

    A case like this might have a chance under new rules.

    RH

  5. Anonymous Avatar
    Anonymous

    What about a local government pulling a NIMBY and rezoning property in order to prevent a new business or development (traditional or “more livable”) from coming in. I could definitely see some of the Southside localities rezoning something from commercial in order to keep a big box store out of the neighborhood despite the much-needed jobs they would bring. I would think that the property owners should be able seek an appeal and be reimbursed if they are successful. Local governments are the offenders here, not the property owners.

  6. Anonymous Avatar
    Anonymous

    Spot zoning is already illegal.

    Access to the courts is effectively blocked by the requirement that your case be “ripe”. That means that you must expire ALL of your administrative options before you can go to court. Since each option may require numerous plans and re-draws, multiple public meetings, etc. this requirement means that you effectively cannot get to court.

    In one famous case in California a developer went befor the board 22 times, and each time the board said “Almost, but you need to give us more concessions.” After they reduced his options to zero, and took almost all the property for concessions, he sued and won.

    RH

  7. Groveton Avatar
    Groveton

    How can anything both empower NIMBYs and accelerate sprawl?

    Don’t NIMBYs oppose sprawl? Isn’t sprawl one of the things the NIMBYs don’t want in their backyards?

    I see this a bit differently.

    Empowering NIMBYs, enriching lawyers and making housing even more unaffordable.

    Would this proposal be better if the people fighting the zoning decisions had to pay the Commonwealth’s legal costs if they lose?

    I think “loser pays” is a good idea for American law. However, this is “government subsidizes lawyers”.

  8. Anonymous Avatar
    Anonymous

    In Canada, contingency fees are considered unethical. If you want to bring a lawsuit, you must pay for it upfront.

    They have a lot less lawsuits.

    Likewise with infrastructure, if ou have to pay upfront, you will have les of it.

    RH

  9. Jim Bacon Avatar
    Jim Bacon

    Groveton, NIMBYs usually come into play when a developer requests a zoning permit, usually to develop at a higher density than permitted by a comprehensive plan. Invariably, people in the neighborhood — NIMBYs — show up at public hearings to object. Sometimes they have legitimate grounds to complain, sometimes they don’t. But when projects get shot down, developers just develop at “by right” densities — the usual sprawl — and the pressure builds to hop, skip and jump farther beyond the development frontier to build the housing that would have been built had the zoning variance been granted.

  10. Anonymous Avatar
    Anonymous

    “and the pressure builds to hop, skip and jump farther beyond the development frontier to build the housing that would have been built had the zoning variance been granted.”

    You can see that in spades where I am. In my county – nothing – but go four more miles farthoer out and cross the county line – BOOM.

  11. Anonymous Avatar
    Anonymous

    Why should people in “settled areas” put up with additional development that comes without adequate public facilities, but with higher local taxes, just to keep things undeveloped further out? In other words, what’s in for residents of Fairfax County to help save Fauquier County or Western PW or Western Loudoun Counties from development?

    If more sprawl means fewer demands on Fairfax County’s overused parks, schools, etc., I vote for sprawl!

    TMT

  12. Steve Avatar
    Steve

    Who pays these costs? The local government?

  13. Larry Gross Avatar
    Larry Gross

    “If more sprawl means fewer demands on Fairfax County’s overused parks, schools, etc., I vote for sprawl!”

    Folks should pay attention to TMT’s statement.

    It IS the driving force on the sprawl issue.

    and I actually would tend to agree with TMT if the ALL of the growth would go to the outlying counties but the reality is that NoVa KEEPS the traffic even when people move to the outlying counties because those counties do not have the jobs.

    Then I’d point out two other factors.

    1. – HOT lanes that will raise the cost of commuting

    2. – outlying counties are now charging much more for housing infrastructure than they used to and are considering even higher proffers. Prince William is looking at 50K per home and both Spotsy and Stafford are looking at 30K+ per home.

    At some point – the costs of commuting – both tolls and increase proffers are going to “level the playing field” as they say and people will be making choices not so much on cost as the cost of living in NoVa vs living in the outlying communities will be more closely matched but instead on other factors…

    which .. MAY start to distribute regional growth – more regionally – to all localities more evenly across the MSA to include places just outside the MSA – like Spotsylvania.

    So think about it this way.

    A house in Spotsy will cost almost as much as a house in NoVA .. PLUS there will be tolls totaling as much as $600 a month to drive solo at rush hour.

    That might well tip the scales to make it just as expensive to own a home in Spotsylvania as in NoVa.

    Then what?

  14. Larry Gross Avatar
    Larry Gross

    “Who pays these costs? The local government?”

    the government does not have any money.

    where does the government get the money from?

    the essential question is…

    is it more expensive to backfit infrastructure for growth in NoVa than it is to ADD infrastructure in outlying counties AND add commuting infrastructure for the folks that live in the outlying counties but continue to commute to NoVa jobs?

    which is more cost-effective?

  15. Anonymous Avatar
    Anonymous

    Generally speaking, backfitting is always more expensive.

    You would have to add commuting infrastructure in either place, so that probably isn’t a discriminator.

    But what might change is the ratio of housing cost to commuting costs, and that would change the equation as to what is cost effective.

    True, one could opt for a smaller home closer in at the same costs, but to make a head to head trade study, you would have to assume the same square feet, or make allowances.

    RH

  16. Anonymous Avatar
    Anonymous

    What do you mean by cost effective?

    I have pointed out previously that as a result of growth, Loudoun residents enjoy more wealth and more income than Fauquier residents. You can consider this two ways: either growth creates more wealth and income, or else conservaton as practiced in Fauquier has costs (and value)in terms of wealth and income.

    Clearly, the Loudoun government faces challenges due to growth. As it happens, so does Fauquier, but at a much smaller scale. But, Loudoun government and Loudoun citizens have a lot more resources to draw on. In Loudoun a large percentage of the population is newcomers, and accordingly newcomers are both the cause of expenses and the major source of funds to cover them.

    In Fauquier there are fewer resources to draw on, and fewer of those resources are in the hands of newcomers. Therefore the existing residents take more of the heat to cover the small amount of growth that they have.

    Which situation is more cost Effective?

    To answer this question you need to establish the boundaries and the time frame to be studied. What is cost effective for Spotsy, might not be for Fairfax, what is cost effective for Spotsy residents, might not be for Fairfax residents.

    Then, if you study the two juridicitons together, you may get yet another answer. And it depends whether you are looking at 5 years, 10, 20, or 40.

    The horizon and options fr a retired person are alot different from the horizon for a growing county government, like Loudoun.

    RH

  17. Larry Gross Avatar
    Larry Gross

    there’s an interesting initiative by the Home Builders lobby group in Richmond …

    … to have the state get involved in establishing standardized impact fees statewide in lieu of proffers levied by individual jurisdictions.

    … now.. it’s possible the lobby will get a total slam-dunk and convince our elected to go for a one-size-fits-all impact fee regardless of the price of land or existing density. I’d never rule out such an outcome out of hand.

    ..but I suspect, more likely, that a study group will be formed.. to better understand why different proffer fees are collected for ostensibly the same infrastructure but it won’t be long before even the most obtuse will start to understand that a school in Fairfax is going to cost more than a School in Spotsylvania AND that these prices will vary according to the price of land and inflation – all highly variable…

    and that one foot of sewer pipe in a place already build out will not be the same as a brand-new line adjacent to vacant land.

    so.. methinks… cost-effectiveness may well get some time on task..

    and I’m going to love it when that commission reports back that growth is cheaper in Facquier than Fairfax…

  18. Anonymous Avatar
    Anonymous

    It probably would be cheaper if building was allowed, but since Fauquier is closed for business, the price is irrelevant.

    “that one foot of sewer pipe in a place already build out will not be the same as a brand-new line adjacent to vacant land.”

    If it is already “built out” what difference does it make? If you are going to re-build it at higher density, you will still need more (new) infrasturucture in a place where it is more expensive.

    Standardized impact fees statewide in lieu of proffers levied by individual jurisdictions could still be based on a number of variables, but it would take out the posibility of a jurisdiction saying, “sure you can build here: the proffer required is infinity.”

    Standardized doesn’t have to mean uniform. But it would mean there is a standard way of calculating them. Right now, it is pretty much blue sky.

    I hope that a study group will be formed.. to better understand why different proffer fees are collected for ostensibly the same infrastructure. And I hope they know what they are doing.

    RH

  19. Anonymous Avatar
    Anonymous

    This is off topic, but it relates to how far off the price of something can be – when the price is set by the government.

    “Suppose a local government decides to invoke eminent domain on a piece of property to build a continuous bike path for a town. In return for taking the land, the government offers the land owner the ‘fair market’ value based on comparable pieces of land in the area. The land owner argues that by taking the piece of land, not only am I losing the land, but also access to a large part of the the rest of my property which reduces the possibilites for future development of the land.

    What is the taken land worth? The market value today for the piece taken or the lost future value of the entire lot?

    That was the question facing a Columbus, Ohio area jury.

    When Canal Winchester offered Richard “Pete” Stebelton $9,249 for a 1-mile strip of his property, Stebelton thought the payment was too low.

    The jury decided Sept. 20 that the land the village wants, along the northern edge of his property, is worth $37,000.

    That’s the market value of the land today. But that’s not all:

    But the jury also decided that by taking it, the village was closing off a back entrance to the property and damaging the value of the rest of Stebelton’s land by $558,625.”

    Getting to court probably cost Stebelton $150,000, but you seee the point.

    RH

  20. Anonymous Avatar
    Anonymous

    The real issue isn’t establishing standardized impact fees statewide the real issue is transparency and predictability.

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