Kaine's Plan May Embolden Va. Leaders
Localities Could Get More Say on Growth

By Alec MacGillis
Washington Post Staff Writer
Thursday, January 19, 2006

Gov. Timothy M. Kaine's plan to manage growth and traffic has the potential to provide more power to local officials, who have long described themselves as overmatched in the battle to control development.

The centerpiece of Kaine's proposal would give local governments the explicit power to reject requests for higher-density projects that would overwhelm their roads. For years, cities and counties in Virginia have said they were uncertain about whether they have the authority to block developers' requests for higher-density projects based on concerns about traffic congestion.

Often, counties have approved projects despite such misgivings, to avoid being sued by a developer.

Shining a light on this gray area and spelling out local governments' authority to block requests would fortify them in their dealings with developers, said Kim Hosen, a member of the Prince William County Planning Commission.

"It would clarify what authority localities have and take away confusion," Hosen said. Right now, "the only way a county has to test the authority they have is to be taken to court, and local officials don't like to do that. Localities have a lot of authority that they're not using."

Kaine's plan grew out of a campaign pledge to better link development with transportation capacity to help relieve congestion on Virginia's roads. Since the Democratic governor laid out his ideas to the General Assembly on Monday, the proposals have been under fire from developers.

In addition to clarifying local governments' authority, Kaine's plan would bring uniformity to traffic impact studies, strengthen cooperation between state transportation planners and local officials and allow for the transfer of development rights from one part of a city or county to another.

Northern Virginia officials say one likely effect of the plan would be to give localities greater leeway in directing growth into areas where their planners have intended it, such as near rail stops.

There are also things the proposal wouldn't do. The plan would give local governments clearer authority in reviewing developers' requests to rezone land but not more power to reject plans in areas where zoning allows what a developer is proposing. For that reason, the plan wouldn't affect many building projects on the horizon.

In that regard, Kaine is not going as far as states such as Maryland, where localities can judge projects by whether there are "adequate public facilities" to support them, even in areas where projects are allowed under existing zoning. In Maryland and many other states, local authorities assess impact fees on developers to cover the cost of public services.

In Virginia, a strong tradition of property rights and constitutional limits on local governments has led most localities to make do with a less formal system in which developers offer money for school or road improvements. Such proffers are negotiated only for rezonings and not for cases in which the zoning allows for the developer's plans.

Several slow-growth advocates said they hoped that Kaine might yet consider limits on growth where the zoning is in place. Virginia Transportation Secretary Pierce R. Homer ruled out such limits, saying "the administration does not support an adequate public facilities approach."

"The governor's proposal is not anti-development," Homer said. Kaine's plan is "designed to give clear and uniform information about the transportation impact of individual development proposals so that everyone's operating with a basic set of facts. The second part of the governor's proposal is to allow localities to act on those facts. That's not a radical proposal; that's simply good government."

Developers have long argued against attempts to expand the authority of local governments, saying cities and counties can reject requests based on well-founded concerns about overwhelmed roads or other services.

John Foote, a Prince William land-use lawyer, said that if cities and counties rarely reject rezoning requests it's because the requests are generally in line with what local officials want.

"The reality is that they have a great deal of flexibility today," Foote said. "For them to say they don't have any power to control development when there are no roads, it's a bit disingenuous. A locality with good reasons can do it."

Several local officials took issue with that, saying they run the risk of a costly court challenge every time they reject a developer's request. "The minute we do, they turn around and sue us," said Loudoun County Board of Supervisors Chairman Scott K. York (I), whose county lost a major rezoning case last year to a group of developers and landowners represented by Foote. "We don't have all the power we need to appropriately manage growth, . . . and they know we don't."

Local officials and slow-growth advocates said parts of Kaine's proposal could have the most impact in outer suburbs facing intense development pressures. Most inner suburbs mandate traffic impact studies for rezoning requests. Kaine's proposal to require and standardize studies across the state could help understaffed smaller governments that have only developers' data go on, if anything.

Clarifying local governments' authority to reject requests could embolden officials in smaller counties who have lacked the resources or confidence to challenge developers in court.

Kaine's proposal could have significant impact in Northern Virginia as well. Greater constraints on building in outer areas could mean less traffic through the inner suburbs.

Clarifying the right to judge projects based on traffic concerns could give localities a powerful tool in reviewing unpopular proposals for developed areas. Localities often feel constrained from rejecting such plans, for fear of being accused of blocking one development where others were approved.

At the same time, Kaine's proposal to allow transfers of development rights from one part of a county to another could ease the way for high-density projects near transit, the focus of much new development in Fairfax County, said county Supervisor T. Dana Kauffman (D-Lee). If a developer is willing to give up building rights in one area, he said, it might make county residents more willing to accept high density near rail stops.

"If we are to see an increased acceptance of intense development around Metro stations, the surest way to get there is guarantee what other pieces of land won't be developed," Kauffman said.