Keeping a Close Eye On the Master Plan
Before Plunking Down a Deposit, Study Up on Maps and Zoning Rules -- And You May Still Get a Water Tower

By Sandra Fleishman
Washington Post Staff Writer
Saturday, December 17, 2005

Tom Norville thinks he did his "due diligence" before signing a contract a year ago for a new home in Dominion Valley, a gated golf-course community on Route 15 outside Haymarket.

He studied the builder's maps, plans and scale model and looked at a master plan from the Prince William County planning and zoning office.

Still, Norville says he never guessed that a water tower shown on the model as a tiny plastic ball on a tee would turn out to be the massive tank towering behind expensive homes finished this spring. Some neighbors say the tank -- light blue and about 120 feet tall -- looks like a giant spaceship. Norville, who lives around the corner from the tank, also says he had no idea that a 13,000-square-foot fire station is planned even closer to his back yard.

The situation in Dominion Valley is contentious, and there is plenty of disagreement over what was disclosed and when. Toll Brothers, the builder, says residents in the community of $700,000-plus homes got the proper disclosure information and that adjacent owners got price breaks. The local member of the Board of Supervisors agrees with the builder.

But this is not the only master-planned community with disagreements over what was done or said and when it was done or said. The highest-profile dispute locally is over Clarksburg Town Center, a planned community northeast of Germantown off Interstate 270 in Montgomery County, where residents have complained that the area is not being built as promised, leaving them with inadequate parkland, narrow streets and homes that are too close together and too tall.

These controversies may take years to resolve. But they illustrate just how big an effect the arcane details of community plans can have on individual home buyers.

It might not be possible to eliminate all unpleasant surprises -- for instance, in Clarksburg, residents claim that the problem is that plans weren't followed. But real estate experts say buyers may avoid shocks if they closely examine the local land-use plan, keep up with plan amendments and development proposals, talk with longtime residents or homeowner groups, and pay attention to what is actually being built.

Even in established neighborhoods, long-dormant projects can spring to life, as the intercounty connector in Montgomery County appears to have done. And in many older neighborhoods, existing houses are smaller than the zoning allows -- so a new supersized house can be out of scale with its neighbors but still within the rules.

But few homeowners or buyers keep track of all those complex legal details, say the experts.

"Typically people don't do that," says Marya Morris, a senior research associate at the national office of the American Planning Association in Chicago. "Typically what happens is people buy a house on the edge of a metropolitan area and next to a nice grove of trees, and they wake up one Saturday morning and see a backhoe in there and find out that 300 homes are going in behind them."

But Morris said, "It's their responsibility to take a look at the plan, or more important, to go the zoning administrator and ask what could potentially happen, whether it's a public facility that could go in or a large housing development that could affect their school enrollments or the traffic."

She added, "It's especially important if they live next to a piece of vacant land."

Whether home buyers even know that they can or should look at land-use plans is a big question.

"A good real estate agent is going to say that you might want to check the county plans," said Mary Beth Coya, vice president of public and government affairs for the Northern Virginia Association of Realtors. "You want a buyer that's well informed. So if the property is in an area where there are roads behind it or open space, they'd want to make sure" there's a strong likelihood it will stay that way.

In many areas, buyers can't count on sellers to tell them what's in store. Around the region, the rules on what sellers have to tell buyers differ greatly.

Virginia is a buyer-beware state when it comes to most disclosure information from sellers. Sellers can fill out a disclosure form revealing the condition of the house or the property, but they can also sign a disclaimer, saying they make no representation or warranties. And most Virginia sellers disclaim, say local real estate agents.

Virginia also has no legal requirement that sellers tell buyers about the existence of master plans or about planned public facilities or other development.

The District version of the regional home sales contract also does not alert home buyers to the local land-use plan, but "it does very specifically talk about how . . . the purchaser and seller are advised to seek professional advice on legal and tax matters and the condition of the property," said Elizabeth Blakeslee, president of the Washington, D.C. Association of Realtors.

The District also requires that sellers disclose any current zoning violations or non-conforming uses -- for example, if a garage was built before zoning regulations and was grandfathered in to current zoning.

Blakeslee said her association also has "a code of ethics requirement" for members "to keep up with the changes in zoning and to the best of our ability" to inform buyers.

Because so much of the District already has been built out, the potential for "abuses" by sellers over development plans is not high, said Constance W. Maffin, chairman of the D.C. Board of Real Estate and a longtime agent with Coldwell Banker Residential in Georgetown.

"We are not hearing a lot of complaints," Maffin said. Problems more often happen because new buyers try to set up home businesses, such as beauty shops, that are not allowed under existing zoning. "I feel sorry for people sometimes. . . . The [agent] does have some responsibility to say, 'Are you aware that you can't set up a business here?' but the buyer has a responsibility to check, too."

But the law and sales contract in Montgomery, Howard and Prince George's counties require that sellers tell buyers about their right to look at master plans and give them the opportunity to check before they buy.

The Montgomery County addendum to the regional sales contract says sellers of new or existing homes in all jurisdictions except the city of Rockville must give buyers the chance to examine the applicable county master plan, any municipal land-use plan and any maps and adopted amendments before they sign a contract. Buyers must sign a form saying that they have been offered that opportunity but can waive the right.

In Rockville, buyers have to sign an acknowledgement that they were given an opportunity to look at the city's land-use documents and were either shown a copy of the plan by the selling agent or were escorted to a place where they could look at it.

If the property is a new home or an unimproved lot, the buyer has to provide a copy of the recorded subdivision plat, according to the contract.

Howard County's addendum says sellers of new and existing homes are required by county code to notify buyers if the property "may be affected" by plans for roadway improvements and land use. The contract gives buyers the right to examine general plan maps. New-home sellers have to keep a copy of the general plan maps and county zoning map in the model home, sales office or at the property.

If notice is provided within less than two days of signing a contract, the Howard County buyer has the right to give written notice to the seller of an intent to rescind the contract and get the deposit back.

Failure to provide the maps doesn't invalidate the contract but would constitute a violation of the law.

The home-sales contract in Prince George's County says buyers have the right to review plans and maps and directs them to the Maryland-National Capital Park and Planning Commission office in Upper Marlboro. Sellers must certify that they have no knowledge of any published preliminary plan, adopted plan or amendment that would result in the condemnation or taking of part of the property.

Other jurisdictions in Maryland can enact their own language.

Because Virginia law is silent on the issue, buyers there must do their own homework, said James C. "Beau" Brincefield Jr., an Alexandria lawyer who specializes in challenging builders' contracts.

"They don't tell you about the plan or direct you to the plan," Brincefield said. "And more basic, every builder that I know of in Northern Virginia reserves the right in their contract to create easements and rights of way over the home buyer's lot even after they've settled."

He said, "You can wake up one morning and find out that the bike path is going through your back yard." He said he had a client two years ago "who literally had that happen."

Another client, he said, "five years ago bought a lot next to virgin land with a bunch of trees, and that land was owned by the county. And nobody told him that the county was reserving that lot for a firehouse. Five years later . . . ding, ding ding."

Brincefield said the hot housing market of recent years made it even more likely that buyers might skip going to the county planning offices to check for themselves.

Paul Meyer, an airline pilot who signed a contract in Dominion Valley last year and in June moved into a million-dollar house down the street from the water tower and the proposed fire station, said he did not check the county plan, depending instead on the builder's materials and assurances.

The market was so brisk when he was looking for a home, he said, that he and his wife took a red-eye flight from Hawaii when they got a call from Toll Brothers that their names had come up on the waiting list.

"When we got here, that's the first time they mentioned anything about the fire station," Meyer said. "How much due diligence can you do when you're sitting there and they say, 'Sign, or you go to the bottom of the list'? So we said, 'Here's $50,000' " for a deposit.

The builder also "made us sign a statement that there would be a water tower there," Meyer said. He signed but says the tower that was built wasn't what he expected. "It happens to be the biggest water tower I ever saw. There was a model, but it didn't look that big. I didn't think this spaceship was going to land there and represent itself as a water tower."

He said, "The reason why you buy in a planned community is so this wouldn't happen."

Michael Steenson, another buyer, said in an e-mail that the sales agreement mentioned that "the county will be building a water tower on a public facility site" but made no reference to its size or scale and made "no disclosure that it would be IN the neighborhood. See, the tower is one thing, having it directly in your backyard is another."

Why not build a water tower with more buffer room around it? There was no need to, said John Elcano, group president for Toll Brothers. "We knew that the homes that were sold around the water tower were sold to customers who knew they were buying next to the tower."

He said: "This isn't unique to Dominion Valley; there are water towers throughout the country and the world and they have to go somewhere. . . . It's like buying a home near an airport . . . you know there will be airplanes taking off and landing there."

Steenson and Meyer both said the developer did not specifically say the fire station would have an exit onto Ryder Cup Drive, inside the gated community.

Elcano said: "We disclosed [the sites] to anyone who bought adjacent to it," and "there was an adjustment to the lot premium," or cost.

Toll Brothers senior vice president Cory DeSpain said the fire station "was disclosed to them at the point of sale. . . . I can tell you those people were apprised, and there were no ifs, ands or buts."

Elcano worried out loud that complaints "by a very small group of people" would tarnish the community's reputation. Dominion Valley has "thousands of happy homeowners" and has won awards from local builders, architects and environmental groups, he said.

County Supervisor John T. Stirrup Jr. (R-Gainesville) says he did "my own due diligence" after a community meeting in October drew about 100 people.

"One of the things that was pretty crystal clear to me," said Stirrup, was "that we did ask for and receive their disclosure agreements that all property owners have to sign. . . . and there was one for the water tower and one for the fire station."

Stirrup added that the community needs the facilities. "When it's completed, there will be over 10,000 residents who will need fire and rescue protection," he said. The two fire stations now serving the area "are really outside of the acceptable response time."

County officials agreed in October to consider the residents' requests for more trees to screen the tower and the fire station and to look at concerns about the route the firetrucks would take through the development to reach other areas. Residents also asked county officials to consider moving the fire station to another site, but Stirrup said moving it could "significantly delay" completion.

Steve Griffin, director of planning for Prince William County, said a county task force has been set up to examine the concerns. A timetable for a response has not been set.

Griffin said it is important "that buyers not just rely on what a developer shows in his plans or on the model that they have in their sales office, but also that they look at what the official county records show for that area."

Lisa Hoess, a newcomer to Dominion Valley from Reston, said she understands the need for a fire station and the benefits it would bring, and she said it was disclosed when she and her husband signed a contract in April 2004.

But she thinks even more detailed disclosure was needed. She is "disappointed" that firetrucks will be going through the development on a nearby street. "Since we have two young children, this is an issue for us and would probably have been enough incentive to keep my husband in Reston -- at least temporarily," she said in a recent e-mail. "The only reason we came out here was to provide a safe, family-oriented environment for our children."

In an interview, Hoess said: "We definitely should have checked the plans."

But even checking the plan isn't always enough, said Clarksburg Town Center resident and key critic Amy Presley. "The problem [in Clarksburg] . . . did not really lie in the planning, it was in the implementation. You gotta keep an eye on the developers."