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Peter’s Take: Revise “Community Benefits” for Discretionary Development

by Peter Rousselot May 3, 2018 at 2:45 pm 0

Peter’s Take is a weekly opinion column. The views and opinions expressed in this column are those of the author and do not necessarily reflect the views of ARLnow.com.

When a developer requests a zoning change to increase allowable density, Arlington County has a set of rules under which the County can approve of such a request contingent on the developer’s willingness to agree to one or more conditions.

The County maintains a list of these “community benefits” conditions, noting in part that they are intended to:

  • “Ameliorate a project’s impacts on surrounding property, as well as any additional height and/or density or other bonuses that may be approved or modifications to Zoning Ordinance standards proposed by a developer, or”
  • “Are in exchange for bonuses and other benefits approved as part of the project.”

The County’s current community benefits conditions have failed to adequately address some developmental impacts

Rapidly increasing student enrollment rates and increasingly crowded parks are two important impacts of many discretionary development projects, particularly those involving new large multi-unit residential buildings. But, the County has:

  • failed entirely to request cash or in-kind schools’ contribution conditions
  • asked only occasionally for contribution conditions relating to park land and open space

Other Virginia jurisdictions routinely quantify impacts on schools and parks, and those jurisdictions impose conditions to ameliorate such impacts in appropriate circumstances.

Impact on schools of incremental enrollment

In Falls Church, voluntary school capital contributions have been a staple of past agreements with developers of mixed-use projects.

The Fairfax fiscal impact model has explicitly considered school impacts since 2003.

Fairfax determines a per-student generation factor by housing type, and estimates how many students are anticipated from the particular mix of housing units in each proposed development. Fairfax then computes a per-student cost for each project, which when multiplied times the number of students anticipated from the project, yields the total incremental enrollment cost that forms the basis for negotiations with the developer.

Important updates to the Fairfax model (effective July 1, 2016) are discussed below.

Impact on schools and parks of incremental usage

Under the updated Fairfax development impact model, benefits for incremental school or park usage negotiated with a developer do not have to be limited to creation or refurbishment of a school or park within the boundaries of the site of the proposed project — so long as those benefits are reasonable in amount and address impacts that are specifically attributable to the residential use component of the project.

Parks include playgrounds and other recreational facilities. Such off-site benefits must provide a direct and material benefit to residents of the proposed project. Both on-site and off-site benefits for schools or parks can include cash.

Conclusion

Neither the Dillon Rule, nor any Virginia state law, nor any Arlington ordinance expressly prohibit Arlington County from requesting a reasonable cash or in-kind contribution from a developer as a condition to address these kinds of schools and parks impacts.

Nevertheless, the Arlington County attorney insists that Arlington is not legally authorized to condition discretionary development projects to address such impacts. However, our County Attorney is unwilling to provide a detailed public explanation so that independent legal experts can examine his reasoning.

Our County Attorney’s refusal to provide such an explanation is unreasonable. If his opinion is correct, Arlington could seek legal changes in Richmond to enable us to do what other Virginia jurisdictions already do. If his opinion is wrong, Arlington should adjust its rules to enable reasonable schools and parks conditions in appropriate discretionary development projects.

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