Just Saying `Yes' to Developers

By Michael D. Shear and William Casey
Washington Post Staff Writers
Sunday, July 21 1996; Page A01
The Washington Post

For years, Prince William County supervisors have complained that construction of thousands of new homes has strained the county's finances by increasing the demand for roads, police officers, firefighters, libraries and schools.

But while they were complaining, a Washington Post analysis of zoning and voting records from 1990 to 1995 shows, the Board of County Supervisors approved virtually every request to authorize more houses in Prince William.

Nine out of 10 times that a developer asked that land be rezoned to allow more houses, records show that the supervisors said yes.

Together, those decisions permit the construction of about 17,700 more houses in the county that could bring enough extra students to fill 1 1/2 high schools, two middle schools and seven elementary schools.

In Prince William, Loudoun and other rapidly growing suburbs in Northern Virginia, officials say that they are bound by previously approved master plans and that Virginia law allows angry developers to sue when zoning decisions go against them.

But an increasing number of land-use experts, community activists and others are starting to question that assumption and to insist that supervisors have the legal authority to say no more often.

They accuse Virginia politicians of being overcautious and of caving in to the wishes of developers.

"Fifteen years ago, the courts were saying the county has a legal obligation to absorb growth," said John Foote, former Prince William County attorney and an expert in Virginia land-use law. "Now, the burden of proof has shifted. Does the county have [the] ability to deal with growth issues today? I think it does."

Although past slow-growth movements have been motivated by concerns for the environment and a desire to protect open space, the current hand-wringing is about the financial health of local governments.

The problem is that each new house represents a financial loss, officials say.

"There's no question that residential development costs, period," said Julie Pastor, planning director in Loudoun County, where supervisors converted 2,667 acres from commercial to residential use in the last five years.

Prince William officials estimate they collect about $2,100 a year in real estate and other taxes on the average house. That same house, however, costs the county $3,700 a year in services to its occupants. Business tax revenue hasn't grown enough to close the gap, and raising homeowners' taxes isn't an attractive option. At $1.36 per $100 of assessed value, Prince William's real estate tax rate is already the highest in Virginia.

"Every time I see a house, I look at it and say, `There goes another $1,600,' " said Supervisor Michele B. McQuigg (R-Occoquan).

Board members bring up the financial impact of new home construction at budget hearings and during meetings with the School Board about crowding. They talk about it during campaigns.

But that hasn't stopped them from authorizing thousands of new homes.

The Post analyzed zoning data provided by county officials and the voting records of each board member. Each time a parcel's zoning was changed, The Post calculated how many additional homes would be allowed on that land. The records did not indicate how many of the 17,700 extra homes already have been built.

Chairman Kathleen K. Seefeldt (D-At large), for example, voted to approve 92 percent of the requests for more houses that came before her from 1990 to 1995. McQuigg voted to approve 91 percent. Supervisor John D. Jenkins (D-Neabsco) voted in favor of 91 percent. Even slow-growth activist Bobby E. McManus, a Gainesville supervisor from 1992 through 1995, voted to approve more homes 76 percent of the time.

Seefeldt, who was told the subject of the story, declined to comment and did not respond to five other requests for an interview made to her office over five weeks. McManus also refused a request to comment. Jenkins and former supervisor Robert L. Cole could not be reached.

Other current and former supervisors gave several explanations for the voting patterns.

Several emphasized that they negotiated with the developers to get proffers -- donations of land or money to help offset the financial impact of new homes. From 1991 to 1996, developers paid about $14 million in proffers.

"We have gotten roads. We have gotten as much as 80 acres for schools," said Supervisor Hilda M. Barg (D-Woodbridge). "The fact that you added 17,000 housing units in five years doesn't take in the total picture."

Former supervisors William J. Becker and Edwin C. King said they were gambling that new housing would attract businesses to ease the county's financial trouble.

"We made a mistake." Becker said. "I knew what I was doing. It's a risk you took."

Several board members say they wanted to slow down growth all along but were compelled to vote yes in most cases. They say that's because developers wanted to build on land that had been earmarked for residential development in the county's comprehensive plan, the blueprint for long-range development approved by supervisors every five years.

Town house developments approved along Linton Hall Road west of Manassas are an example. In June 1993 and May 1995, the supervisors were asked to rezone the land, authorizing about 780 additional homes.

Supervisor Maureen S. Caddigan (R-Dumfries), a former School Board member, raised concerns about the effect of new developments in that area but ended up voting with the majority to approve them anyway.

"I remember saying there is so much growth in the Linton Hall corridor," Caddigan said. "But I always felt that legally, if we don't do this, they are going to sue us."

McQuigg agreed: "If it's in the comprehensive plan for residential, then we really don't have too much of a choice."

Said former Coles supervisor Terrence Spellane, "We would talk about denying them, and the advice we would get is that it would not be very defensible in court."

That view has held sway in Virginia for years, and some land-use experts say it still applies, citing Virginia's constitution and a long history of court cases won by developers. Landowners often have sued when officials deny residential zoning for property that a comprehensive plan earmarks for houses over the next 20 to 40 years.

Prince William, population 250,000, adopted its comprehensive plan in 1991. It envisions a county that eventually would have enough houses for 470,000 residents.

"If the comprehensive plan says this land will eventually be residential, they don't have a leg to stand on" to say no, said Jay Langford, a land planner at the Metropolitan Area Council of Governments.

Langford and others point to state Supreme Court cases in 1959 and in the early 1970s, when Fairfax County's efforts to deny rezonings were overturned.

"There is a lot of case law out there that says just because the schools are a little overcrowded, that's not enough to say no," said Steve Micas, Chesterfield County attorney.

There is a growing belief, however, that Virginia's elected officials have more freedom to limit growth.

First, they say, officials can modify their comprehensive plans to allow less growth. Prince William is now conducting a routine, five-year review of its plan.

Moreover, many say, Virginia courts are interpreting the law differently in recent years and are less likely to overrule a local government when it denies a rezoning request. In a key 1981 case, the state Supreme Court upheld a denial by Loudoun County supervisors, saying they had a right to decide whether the project made sense for the county at that time.

"What has changed is the court's unwillingness [now] to police the parameters of the political process," Foote said. "I don't think that's a bad thing."

Ronald H. Rosenberg, a law professor at the College of William and Mary who is writing a book on Virginia land-use law, agrees.

"It's not so much a legal issue as a kind of holdover in attitudes of elected officials," Rosenberg said. "There has been an intimidating effect that these cases have had on local officials. It's made them overly nervous about taking any action."

Experts agree that officials in Virginia do not have as much authority to control home construction as do officials in Maryland.

Developers in Montgomery County who want to build new houses must prove that the public facilities -- roads, schools, water lines -- are adequate before the bulldozers can begin pushing dirt. And the County Council can set a yearly limit on new homes.

But Rosenberg and other experts believe Virginia authorities also could delay approving new homes until services exist to support them.

In Chesapeake, for example, city council members have begun to routinely reject residential projects in neighborhoods where schools are crowded and traffic is heavy.

"It's not a litmus test. It doesn't mean that, automatically, the council will turn you down," said City Attorney Ronald S. Hallman. "But I think you can count on one hand the number of residential rezonings that have been approved in the past two years. And we haven't had any lawsuits."

Chris Miller, the president of the Piedmont Environmental Council, said slow-growth experiments like those in Chesapeake prove supervisors in Prince William are too cautious.

"They are basically caving in to legal threats," he said. "Maybe they should take that risk and see what happens in court."

Sharon E. Pandak, the Prince William County attorney, told supervisors last month that they could consider slowing residential growth much the way Chesapeake does.

"A consistent, rational . . . scheme for timing of development," she said, "is likely to pass the fairly debatable standard set by the courts," though it would require an overhaul of county procedures.

At least one supervisor wants to try.

"We do have to start saying no more and not be timid. `Fine, take us into the court,' " Caddigan said. "Maybe we hadn't reached that point four years ago. I'm not going to stand for it anymore."

© 1996 The Washington Post Co.

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