A reader alerted me to a piece in the Cowlegiate Crimes from yesterday in which a 'reporter' provided a lengthy quote from Dan Breslau, head Poobah of the TaliBURG, in which he describes to everybody what smart growth means (at least to him).
According to Gabriel McVey, the CT 'reporter', the case in court revolves around whether or not the town has a right to make its own rules regarding development: "In a short while, attorneys for the town of Blacksburg and BURG — Blacksburg United for Responsible Growth — will petition the Virginia Supreme Court to hear their case: the idea that the town has the right to regulate its own growth and development, and to block developments that it deems harmful."
Of course, nobody is challenging whether or not the town has such a right. Within the law, they clearly do. But that has nothing to do with the court case. This is once again a perfect example of how the TaliBURG, through their ignorance, totally miss the point.
The central point of the court case is to determine whether or not the developers had established 'vested rights' in the project. If the answer is yes, then they are free to operate under the plan they are working now, which presumably includes the big box store. If the answer is no, then 1450 applies and they would have to request a special use permit for anything over 80,000 sf. Which will not be approved.
When a developer is working on a project, at some point they have put enough work into it, in compliance with the planning department's instructions and restrictions, that they are no longer subject to additional requirements being imposed on them. This is to protect the developers who have been operating in good faith from being jerked around arbitrarily and jeopardizing the projects and maybe causing the company to go out of business. Without this protection, no developer would ever take on a major project.
Also, developers often, in fact almost always, submit plans for approval that are not the final plans, but considered to be representative of the final plan. The final plan must meet the specific requirements of the rezoning or SUP, but otherwise the developers can adjust it to fit the situation as it develops - either due to site issues or market issues.
In the case of the South Main project, the developers presented a plan that was exactly as described by Dan in the article. Mixed use, low-impact. I remember thinking it was a wonderful idea but I didn't see how it could work economically in this market. Essentially, all downtown Blacksburg is a mixed use development with residential (a few apartments and lots of dorm students) and retail (t-shirts, pencils, alcohol, sandwiches). That seems to work about the way all college towns of this size work.
Apparently the developers at one time stated that the campus location would provide the necessary traffic to make the economics work. I never believed that. Apparently the nascent TaliBURG folks did.
Anyway, after the rezoning was approved, the developers changed the plan. No question, they did. Whether it was a scheme from the beginning or not, only they know. But the point is, the town rezoned the property without taking precautions to prevent certain uses. The developers are working within the rezoning restrictions. They put effort and money into the project. The board of zoning appeals applied the legal tests and determined that the developers had met the legal bar to establish vested rights, and therefore were not subject to ordinance 1450.
That's what the lawsuit is about. It's not about whether the town has the right to control its zoning or growth patterns.
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11 comments:
Thank you for that.
I was not paying attention when the project first approved, but I remember hearing rumors about housing and apartments for the elderly. Your explanation helped quite a bit.
If Council wanted to control this project, then 1450 should have happened from the beginning. They left everything wide open for the developers. Now they have a half-@$$ed ordinance that will prevent any large retailers from coming in. I still believe that had Target or Costco or IKEA (I wish) came in instead of Wal-Mart, then 1450 would never have happened.
Don't underestimate the depth of NIMBY (not in my back yard) within this small group. Although they claim a large following, most of the active folks are in the neighborhoods near the development. I think it's funny that Dan B mentioned that more people signed the petition than actually voted. Well, DUH! That is always true. It doesn't take much to get people to sign a petition. That's why they are generally counted as one opinion - of the person who wrote the petition.
I thought I remembered seeing one of the potential plans included with the rezoning packet depicting what looked like a box store for the parcel behind Kroger...along with another option showing the potential for residential on that site. I'm guessing that everyone went gaga over the residential plan and didn't look too closely at the box option, but I think it actually was included...although certainly not emphasized. Take a look at the rezoning packet on the TOB site:
http://tob.bev.net/enews/south_main/Ord1412.pdf
and look at page 36, it shows something that certainly has the appearance of a box with addes strip/outparcel development next to it. It's certainly not a Wal-Mart Supercenter, but it should have raised flags for anyone paying attention at the time that this could have happened. 20-20 hindsight can be a real drag.
I never saw the actual plans, only the presentation materials with the artists concept drawings. Even if a box was an option on the site from the beginning, the mixed use aspect went out the window in a hurry once they did some actual market analysis. But you are absolutely right in your comment...the town had ample time to get this the way they wanted it the first time around, and through their 'mistakes', if that's what they were, they opened the door for hundreds of thousands of dollars of B-burg taxpayer money to be spent foolishly in the courts.
Maybe there's more than one person with this name, but I see a "Susan Anderson" is volunteering at the BURG booth at Steppin' out Saturday from 2-4. Maybe it'll be easier that way for them to tell her how to vote...
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From the BURG google group discussion"
Subj: FW: stepping out volunteers
The booth is located next to the Homebody booth, which is great because then
you have access to bathroom, air conditioning and music at the Post Office
parking lot. Here is the schedule so far.
My kids are helping me with my booth so, hopefully, they will be able to run
both stands when help is needed with either booth.
THANKS TO ALL who are volunteering. I really appreciate it. We could still
use a few more hands so if you know anyone who can help, please ask!
- Margaret
FRIDAY:
10-12 Ann Linden, Betty
12-2: Judy Kirwan, Shelly
2-4 Shawn
4-6 mark
6-8: Rosemarie Sawdon, Shawn
SATURDAY
10-12: Kimberly Homer,
10:30-12 Suzanne Glasson, Shelly Maycock
12-2: Rosemarie Sawdon. Kathy Huser
2-4 Susan Anderson, Mike Anderson, Kathy Huser
4-6 Lucinda Jennings, Mark & Marian
6-8 Hannah
I think she was already in the BURG proverbial pocket though, so I'm not sure how else her voting could be directed. I'll probably not be bothering with Steppin' Out this year, it's just not as enjoyable when there's a large gathering of politically motivated folks pushing themselves and their agendas on folks who just want to have fun. It's the same reason I had to avoid certain areas at the NRV Fair...I'll take my politics when I want them, on my terms...not when some volunteer decides to track me down and tell me how "evil" Wal-Mart and Sonic are for the Town.
Well, it may not be her since there is another Anderson listed next to Susan's name and that is not her husband's name.
In all fairness, I think as an elected official you have every right to be involved in political groups, but I agree that there is a fine line.
SA has a "No Wal-Mart by Beeks" sign in her front yard. It is her right. But I think it would be the right of Fairmont to mention such a thing in their lawsuit.
There is a cardinal rule in life: If you are going to open a can of whoop### up, don't shake it and make sure it is pointed away from you before opening.The Court will make hash of this.
I think the lawsuit is primarily due to the bait-and-switch. Does a community have to predict and guard against every possible way a developer might lie to them? That seems unreasonable. Why not hold them to what they first submitted since that was what was approved?
No question the impetus for both 1450 and the lawsuit is the presumed 'bait and switch' by the developers. The present plan seems very different to me than the original proposal. But a change in the plans that is in keeping with the letter of the rezoning is allowable, and it was the ruling of the BZA that the changes met the requirements. In addition, the BZA determined that the developers had met the requirements to claim vested rights. I think that is where the legal case will focus. The court will get a chance to make restrictions on the definition of vested rights if they choose to.
NRJMike -
Thanks for bringing all of this to light. 1450 was a reactionary decision, rushed through in a feeble attempt to stop the bleeding. I don't shop at Wal-Mart - that's my decision, made for personal reasons and not because they sell cheap plastic stuff.
This is about control. Council lost control of a project, and they're trying to reign it in at the expense of the taxpayers. Full disclosure, my business is real estate and so I have a quiet professional interest in a project like this, but it's no secret that a developer is required to submit, in writing, plans detailing the scope of the project within the current zoning. As you said, changes within the letter of the zoning are allowable, yet here we are. The zoning was used to the developer's favor. When Council realized this, they tried to act retroactively and cover their oversight.
Have enjoyed getting another's perspective on this, and you seem to be handling it openly. It's something I've been writing about for, well, a long time, and frankly I'm getting tired of it. I didn't vote for 1450, I didn't ask my Town to spend tax dollars fighting for something I don't believe in, but that's what I'm getting.
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