Articles

Earthquake

The land use reforms embedded in the 2007 transportation bill will send seismic shocks through Virginia’s local governments and development industry.

by Peter Galuszka

For all the ink dedicated to The Comprehensive Transportation Funding and Reform Act of 2007, most journalists and commentators have missed significance of the landmark legislation. Articles have  focused overwhelmingly on the "funding" aspects of the act and treated the "reform" measures as an after-thought. But the bill will unleash some of the most profound changes in land use planning seen in the Commonwealth of Virginia in a half century.

Provisions of the controversial Act, which passed April 4, will transform the planning for everything from subdivisions and strip malls to roads and sewers. Gone will be the laissez-faire approach that many counties have taken to land use planning. In its place, says Clay L. Athey, Jr., the Republican delegate from Front Royal who wrote key provisions of the bill, will be a “hands on approach" that dictates how counties shall go about managing growth.

Developers and local government officials are still sorting out the far-reaching implications. Says Athey: “I don’t think they completely understand the dramatic change that is going to occur in the next 10 years in Virginia.”

No longer will most large counties be allowed to choose whether or not they want to designate specific areas for higher density development. They will be required to do so by state law. What’s more, some counties finally be given the means – impact fees – to punish wayward development and to steer growth into areas where roads and infrastructure have been planned for.

After the 10 or so years that it will take for House Bill 3202’s provisions to be fully implemented, owners of farm land will no longer be allowed by right to divvy up a stretch of pasture for acre-plus housing lots without paying a price for doing so. Moreover, the bill contains provisions that allow fast-growing Northern Virginia counties to assess impact fees for growth that takes place outside designated areas. In one little remarked-upon section, the new law will forbid developers statewide from building subdivisions as completely disconnected entities. State approval of roads will require new subdivisions to have roads that connect with adjacent subdivisions.

Here are some of the law's land use highlights:

• Fifty-nine counties including the state’s largest and fastest-growing, such as Fairfax, Loudoun, Chesterfield, Henrico and Stafford, must create Urban Development Areas (UDAs) by July 1, 2011.

• Inside a UDA, housing densities must reach four units per acre or more. UDAs must be of sufficient size to handle growth for 10 to 20 years.

• Development within UDAs should apply pedestrian-friendly “New Urbanism” design principles, although critics say the bill’s language doesn’t specifically require it.

• Urban Transportation Service Districts (UTSDs) may be created for counties of 90,000 or more people that do not maintain their own roads. Such counties include Chesterfield, Spotsylvania and Fairfax, among others. Special real estate taxes for road maintenance may be levied within those UTSDs and densities within the area must be at least one unit per acre.

• Impact fees may be imposed on development outside the UTSDs on parcels zoned for agricultural use that are being developed for residential on a by-right basis. However, counties that create USTDs must assume responsibility for maintaining local roads and would receive a road maintenance payment from the Virginia Department of Transportation. These fees must be adopted by Dec. 31, 2008.

• A second type of impact fee for road improvements only, currently authorized for counties such as Chesterfield, Fairfax, Loudoun, Prince William, Spotsylvania and Stafford, was extended to 49 other counties. These fees can be imposed on both residential and commercial development. Local governments may exempt development within UDAs from the fee.

• UDAs are not tied to any impact fee.

Considerable confusion still surrounds the bill. “I’m not sure yet how the two impact fees differ,” says Trip Pollard, director of land and community projects for the Southern Environmental Law Center. Pollard has been actually engaged in lobbying regarding the bill.    Another conservationist advocate praises the Act.

“It is a major acknowledgement that localities have a responsibility for growth," says Lisa Guthrie, executive director of the Virginia League of Conservation Voters. Guthrie admits, however, that she hasn’t studied all of the bill's land use provisions.

As far-reaching as the Funding and Reform Act is for Virginia, it employs planning concepts that have been commonplace for years. UDAs have been discussed in planning circles for decades. “I studied UDAs when I was in land use school 27 years ago,” notes Ted McCormack, director of governmental affairs at the Virginia Association of Counties, who has monitored the new law since its inception last fall.

With UDAs, a locality designates a specific area, typically near an urban zone, as being available for higher density development. Either the roads, water, sewer and other infrastructure already exists or the jurisdiction is planning to provide it. Developers proposing new projects in these growth zones usually have an easier time winning rezoning approvals.

Virginia’s 134 counties have been free to develop UDAs for years, and several, such as Chesterfield, Loudoun, Albemarle and Frederick Counties, have done so in meaningful ways. Frederick, which resides in Athey’s legislative district, has faced tremendous growth pressure, mostly from the Washington metropolitan area, since the 1970s.

In Athey’s appraisal, the problem was ‘by right’ development in which land owners, usually farmers, split their parcels up into low density development, says Athey. “We were losing all of our farms, orchards and mountains. [After a UDA was set up,] Frederick County has been much more successful in absorbing growth while preserving farmland.”

Land use in Virginia had traditionally been driven more by politics than public policy considerations, Athey says. The “laissez-faire” approach, as he describes it, resulted in “very poor planning” and urban sprawl. Instead of executing well-planned projects, he says, developers tended to go for the cheapest land -- property that was up for auction after a foreclosure or estate sale -- or locate projects in counties where the supervisors had a reputation as zoning pushovers.

One state that had successfully used UDAs was Oregon. Maryland also used them, but was too strict, he says. Maryland’s Urban Growth Boundaries forbid any type of development beyond the boundaries, creating constitutional issues on property owners’ rights. “We in Virginia didn’t think that that was going to fly,” Athey says.

Drawing from the UDA experience in Frederick County and his own work as a land use lawyer, Athey met with General Assembly House Speaker William J. Howell to put land use on a higher, public policy plane. About three years ago, they informally started massagiong legislative ideas.

The two lawmakers assembled the legislative language and placed it House Bill 3202, which proved enormously controversial for the way it handles a separate issue – the financing of transportation improvements. Athey says that he met with environmentalists and home builders’ groups. Although some conservationists didn’t think the bill went far enough and the building lobby opposed impact fees, everyone agreed that the general concepts were worthy.

Remarkably, the tectonic shift in land use policy has received little attention from the mainstream media, aside from The Washington Post. One reason, Athey speculates, is that “everyone had to give something up” as the bill was being drawn up. There wasn’t much controversy to draw press coverage. Indeed, the very acrimony that embroiled the road-funding part of HB 3202 provided cover for the land use package.

Gov. Timothy M. Kaine approved most of the land use provisions and expanded some, such as requiring 57 counties to draw up UDAs, not just the 15 counties in the original language. The UDA requirement now extends to counties with more than 20,000 population and a 5 percent-per-decade growth rate, or a 15 percent-per-decade growth rate.

Athey notes the UDAs must hew to New Urbanism urban design principles marked by higher housing densities, house fronts nearby sidewalks, small service stores within walking distance, and bike and running trails. “There won’t be neighborhoods of one-acre lots [or] huge apartment complexes,” he says.

Pollard, however, is critical of the New Urbanism language, noting that the bill says that counties “may” embrace the concept but does not require them to do so.

An important part of the bill aims at preserving farmland that Athey says is being squandered on large-lot, low-density development. “A lot of this by-right development is being done on little, two-lane country roads,” he says. “That [provision] is a major change in Virginia.”

To put teeth in the law, over half of the counties can assess impact fees for road improvements on residential and commercial development. Typically, he says, the fees would range from $5,000 per residential unit to $20,000 per 1,000 square feet for commercial. In addition, a county can help direct growth within their UDAs  by exempting those areas from impact fees.

Another type of impact fee can be assessed in large counties that have more than 90,000 people but do not maintain their local roads. These include Fairfax,  Prince William, Loudoun, Spotsylvania and Stafford. If the counties agree to maintain their roads, they will be allowed to charge a fee to pay for fire, police, schools or libraries on by-right development projects on agricultural land, according to McCormack.

The broader impact fee could run to $40,000 or $50,000 per unit, Athey says. Predictably, both types of impact fees are staunchly opposed by the Home Builders Association of Virginia, the building lobby. Critics charge that the fees will make housing less affordable, but Athey says it will be easier to build housing within UDAs and UTSDs, reducing scarcity and making it more affordable.

The bill will shape land use in other ways.

Incentives for counties to maintain their own roads should help relieve the budget-challenged Virginia Department of Transportation, which now maintains secondary roads in all counties but Arlington and Henrico Counties.

In what Athey calls a “sleeper” provision, the General Assembly passed a separate bill that requires VDOT to "fast track" new road standards for subdivisions: No longer will builders be allowed to develop subdivisions that fail to connect to adjacent ones. Typical cul de sac developments provide only one or two entry-exit points, funneling traffic from the entire neighborhood onto the same collector road and aggravating congestion. Linking with neighboring subdivisions will allow residents to take alternate routes to their destinations.

It may take some time before the full impact of Bill 3202’s revolutionary land use provisions become known. While the building lobby decries impact fees, environmentalists such as Pollard say that the densities allowed for commercial development are so low than virtually any existing strip mall would be allowed. What’s more, Pollard worries that some language is so loose that counties can avoid doing what the bill intends. "On the whole, these are important steps forward, but they are modest steps,” Pollard says.

Perhaps, but given the state's dysfunctional approach to land use, even modest steps could take Virginia a long way.

-- April 7, 2007