Articles

Don't Panic!

The most momentous changes to Virginia land use law in a generation are grinding their way through the system. Local government reaction is somewhere between nervous and alarmed.

by Robert L. Burke

After the Comprehensive Transportation Funding and Reform act of 2007 was passed in April, its relieved supporters went home from Richmond hoping that the promise of new road-building money and land-use reform would bring cheers from weary voters.

If they did hear any cheering, though, it likely didn’t come from county offices around the commonwealth. Local planners, engineers and attorneys are now faced with the unenviable task of figuring out how – and if -– the new law will work. So, when about 300 of them gathered last week near Richmond to talk it over, the mood was decidedly less than enthusiastic.

Certainly, the land-use provisions of the new law could produce sweeping changes in how counties grow, ending the disconnect between development and transportation planning. For example, most larger counties will be forced to designate Urban Development Areas, where higher-density growth will occur. And many counties will be able to raise money for transportation projects through impact fees on development, a power that many counties have long wanted.

But how will it all work? Nobody’s quite sure. “No one from local government would have written the statute the way it’s been written,” said Chesterfield County Attorney Steve Micas.

Secretary of Transportation Pierce Homer tried to set the tone of the session -- a daylong summit co-sponsored by the Virginia Municipal League, the Virginia Association of Counties, the Virginia Coalition of High Growth Communities and the Virginia chapter of the American Planning Association -- with a carrot-and-stick approach. The new law represents “an amazing step” for localities’ authority to shape their own development, he said. At the same time, he issued a warning: “I know that there are reservations with this legislation and what it means for your individual localities, but we cannot continue doing business as we have the last 40 years."

Two hundred miles of subdivision streets are being added to the state network every year and there isn’t enough money to maintain them, much less to undertake new road projects. “That’s just simple arithmetic,” Homer said. “We have a revenue base that is, on a proportional basis, shrinking. We can’t continue on that path.”

The impact fee legislation drew lots of questions. The new law gives counties much more power to collect fees and spend them, but developing local fee structures is complicated, said Jeffrey Mincks, Chesterfield’s deputy county attorney. He and Micas spoke to the group because Chesterfield's staff has recently developed its own complicated formula for setting impact fee levels.

To what extent, an audience member asked, can impact fees be used to correct prior – or existing – transportation deficiencies? Mincks said Chesterfield took a conservative tack and didn’t calculate those costs in setting its proposed fees. But he thinks the new law isn’t clear on that point. “If you take a look at the statute, you might come to the conclusion that you can indeed include those costs,” he said.

Stafford County Administrator Steve Crosby said counties can apply the impact-fee funding for existing transportation deficiencies. In 2003 Stafford became first locality in the state to enact impact fees. “Under the old legislation, everything had to be geared toward roads that you were going to need in the future,” he said. “Now that that [limitation] has gone away, it’s my opinion that this is going to be a huge difference” for counties.

What about other projects, such as bike paths, pedestrian access or mass transit service – can impact fees be spent on those? Chris Nelson, a professor of urban affairs and planning at Virginia Tech, said the statute refers to “related appurtenances” to the roads, which he regards a loophole of sorts. “I think we’re pretty good with sidewalks, bicycle pathways [and] bus shelters because they’re part and parcel of the road network itself.” Nelson is helping draft a model impact-fee ordinance for localities, but he’s not a fan. “Impact fees are a last resort to solving problems when all other systems fail,” he said.

One questioner asked if approval of impact fees signal a failing system. Is it too far gone to fix, someone asked. “I think it is,” Nelson answered, to laughter from the audience. “Impact fees are not going to solve the transportation problem. But they will help.”

Still, he praised the new law for broadening the base of impact-fee authority by applying it to all new development, whether it’s by-right or not. Plus, the new law factors in proffers that may have already been promised in connection with development. But that raises another question: What happens, he asked, if the list of proffers for a project differs from the list of transportation fixes that impact fees would pay for? “Do you give credit for the cash proffers, from one list to another? I don’t know.”

The uncertainty localities feel is understandable, said Trip Pollard, a senior attorney with the Charlottesville-based Southern Environmental Law Center. “The last two years represent the most significant change in transportation in Virginia in the past 20 years,” he said. “This is a potentially fundamental shift.”

Yet Pollard cited several shortcomings. The new law, for example, cites “New Urbanism” design principles that should be used in Urban Development Areas, but doesn’t say which ones. What’s more, there is still no state vision for land-use planning, and no state-level entity to apply it.

Even if county officials figure out the nuances of the new law, they need to go farther to create successful communities, said Daniel Slone, a partner with McGuire Woods with a background in land-use law and New Urbanism. The design of new development and the transportation networks have to work together. 

“If you try to mix parts of New Urbanism with traditional development, you get the worst development you could imagine,” Slone said. “You have to understand how the elements come together.”

The design of public schools is one place to start, he said. Many schools today are designed essentially like big-box stores, he said. “They take up huge areas, and they create big parking lots,” he said. But don’t blame developers – it’s county officials who decide how the schools will look. “I encourage you to have the vision of great places.”

Pollard described the 2007 legislation as a first step. What happens next depends on the counties, and the political direction that next year’s General Assembly takes after the November elections. The state is pushing more responsibility on localities but also giving them more power. They shouldn’t overlook the opportunity, he said. “Localities are in a very important period, with everyone trying to wrestle with what the statutes mean,” he said.

-- August 1, 2007