In what one official called a "bald attempt to circumvent the planning process" in Fairfax County, a developer there has applied for commercial zoning on a tract of land that the planning commission ruled last month should remain residential.
The rezoning application seems certain to be rejected, since it does not conform to the county land-use master plan. When that happens, the developer is expected to sue, precipitating a court battle that would have major long-range implications for the county's land-use policies.
The rezoning application was filed this week by Tysons Cloverleaf Partnership -- made up of the principals of NV Cos.' network of residential, land and commercial real estate operations. It asks the county to rezone more than 96 acres from residential, R-1, to a combination of commercial and rural preservation district categories.
The land involved is between the Dulles toll road, long considered the barrier against the spread of commercial development from Tysons Corner into nearby residential areas, and Lewinsville Road.
The proposal is almost identical to a proposed amendment to the county's comprehensive land-use plan that was rejected several weeks ago by the Fairfax County Planning Commission.
That proposal sought to have almost the same acreage changed from residential to commercial. At that time, NV Cos., a parent of Tysons Cloverleaf Partnership, was proposing to maintain almost 50 percent of the site in open space while building 1 million square feet of commercial space.
Several local civic leaders said the rezoning effort using the rural-preservation language is a word game that will not fool area residents. The rezoning attempt has stirred the ire of residents of the McLean, Vienna and Tysons Corner area, who battled the proposed land-use change for more than six months.
County officials also are apprently irritated by the application.
George Lilly, chairman of the County Planning Commission, called the rezoning effort "a kind of bald attempt to circumvent the planning process."
Fairfax County Supervisor Nancy Falck said she is sorry to see the application filed. "I'm very sorry that there will be a confrontation," she said.
"But there will be a confrontation," she added.
Falck, within whose magisterial district the land lies, had opposed the attempt to change the land-use plan for the site.
NV Cos.' proposal to amend the land-use plan was rejected after Chairman Lilly said he was unwilling to go along with a deferral sought by the applicant's lawyer, former state attorney general Marshall Coleman. Lilly told the planning commission the proposal had been adequately aired in the community.
Although Fairfax County legal staff members said they were not surprised that the rezoning has been filed, they would not comment further on the case. The rezoning application will be handled just like any other, according to one member of the county planning staff.
Should Tysons Cloverleaf Partnership be rejected and win a subsequent court battle against Fairfax, there is fear that other developers might follow suit and take their case to court if they do not like decisions made by the Board of Supervisors. The Virginia courts have a reputation for sympathy toward landowners' property rights.
However, several land-use attorneys said Fairfax has fared well in defending its land-use decisions in recent years. Fairfax officials are ready to go to court if necessary on any land-use case -- especially this one, sources said. Apparently buoyed over their victory in the recent defense of board actions in the down-zoning of land in the Occoquan watershed, the county legal staff has gained confidence in its ability defend the county's right to control land use.
Sources said the county is confident that a decision based on a land-use plan that has a built-in system for periodic review is defensible in court. Fairfax has annual specific reviews of its land plans and, every third year, any application to change the plan is automatically heard by the county planning commission.
Meanwhile, neighborhood groups are both opposed to and annoyed by the application.
"I was wondering if the county has a way of extracting the costs of all the county staff work that will go into processing this application that will not fly and that will end up in court anyway," said Stephen Hubbard, chairman of the McLean Citizens Association's Planning and Zoning Committee.
"We are all on record opposing the plan amendment," Hubbard said. That opposition will not change just because a rezoning has been filed, he said. "We have a very firm boundary the Dulles toll road corridor . It assures the residential character of the whole area," Hubbard said.
Tysons Cloverleaf partnership is made up of major principals in the companies. They are Dwight Schar, William Moran, Stephen Cumbie and David Flanagan.
Moran said this week that only a "one-page" rezoning has been filed. Details of the proposal will be worked out over the next three or four months, he said.
However, he said the plan is basically the same one that was involved in the unsuccessful attempt to change the county's land-use plan. That proposal called for construction of 1 million square feet of office space and low-rise buildings on 48 acres, while leaving approximately 50 acres of open space. There is a discrepency of approximately two acres in the size of the tract in the two proposals, but the spokesman for NV Cos. said that probably resulted from more careful realignment of boundaries. Asked if he were ready for the opposition the project already is generating, Moran said, "I think we are ready for it."
Moran said the proposed "usage is good."
"There is precedent for it," he said. He pointed to a major commercial development built between the Dulles toll road and Lewinsville Road, and visible from Dolley Madison Boulevard, as a precedent for development of his company's acreage for commercial purposes. Planning Research Corp. and the Farm Credit Bureau occupy large buildings in that office development.
"Ours is probably further away from Lewinsville Road than that. It is less dense than PRC," Moran said.
He said developers "have voluntarily gone" to citizens groups in the past and are ready to "begin rolling again" to try to pick up support they were unable to win in the battle for the planned amendment.
Fairfax is currently in the middle of final action on proposed amendments to the county land-use plan. During this triennial review, every application filed was given a public hearing by the planning commission. Less than one-quarter of the 300 challenges to the plan were approved by the planning commission and forwarded to the board of supervisors for final action in July.