Guest Commentary: Proposed Zoning Changes Oppose Law, Constitution

June 27, 2013 9:12 AM3 comments

The recently proposed changes to the City zoning ordinance proposed by the Planning Commission constitute an uncompensated taking that will permanently destroy in excess of $108 Million in taxable real estate value. Each lot owner will lose roughly $450,000 in value at today’s prices.

Virginia is a property rights state. Under the fifth amendment of the Constitution of the United States, “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The zoning changes, as proposed, are in direct opposition to the Fifth Amendment of the Constitution and Virginia law. Attempts to forcibly join platted lots will deprive the owners of their property rights without just compensation. The forced extinguishment of a legally existing lot, properly approved and recorded at the local general district clerk of the court, constitutes a taking of private property without compensation and a circumvention of the due process clause and VA Code § 15.2-2272. There are over 240 of these lots in the city. State law protects these lots at:

§ 15.2-2272. Vacation of plat after sale of lot.

In cases where any lot has been sold, the plat or part thereof may be vacated according to either of the following methods:

1. By instrument in writing agreeing to the vacation signed by all the owners of lots shown on the plat and also signed on behalf of the governing body of the locality in which the land …

2. By ordinance of the governing body of the locality in which the land shown on the plat or part thereof to be vacated lies on motion of one of its members or on application of any interested person. The ordinance shall not be adopted until after notice has been given as required by § 15.2-2204. The notice shall clearly describe the plat or portion thereof to be vacated and state the time and place of the meeting of the governing body at which the adoption of the ordinance will be voted upon. Any person may appear at the meeting for the purpose of objecting to the adoption of the ordinance. An appeal from the adoption of the ordinance may be filed within thirty days with the circuit court having jurisdiction of the land shown on the plat or part thereof to be vacated. Upon appeal the court may nullify the ordinance if it finds that the owner of any lot shown on the plat will be irreparably damaged. If no appeal from the adoption of the ordinance is filed within the time above provided or if the ordinance is upheld on appeal, a certified copy of the ordinance of vacation may be recorded in the clerk’s office of any court in which the plat is recorded.

No lot may be forcibly vacated without the consent of the owner or a court order affirming the vacation of the lot. Note that this procedure requires each single plat to be moved upon either by a member of city council or an interested party. There is no provision for a blanket elimination of recorded plats.

There are many unintended consequences to this act: increased lot costs, higher taxes for larger lots, shifting the tax burden to owners of large lots, soaring home prices making our city less affordable, and a class action suit for mass condemnation. Another set of legal expenses for the taxpayers to fund.

What about the schools? The small number of homes involved will not harm our schools. Our city has outgrown the schools and they must be replaced. That is a fact. The only way to fund that replacement is with a long term strategic plan designed to attract high density housing for singles and seniors while simultaneously building dense and walkable commercial areas. The City Planning officer and EDA are currently developing plans along this line of thought. Our city needs a vision that includes proactive change, not reactionary leadership that cows to the drumbeat of a handful of citizens on a self appointed mission to halt new construction. Are you aware the head of this citizen activist group has a wife on the Planning Commission who promoted and voted in favor of this condemnation?

If we, as a city, fail to act with purpose and self determination we will miss a generational opportunity. If we wish to prosper, we must invest wisely and act intelligently, not cling to antiquated ideas to stymie progress. The homeowners of this city should not be forced to bear the coming capital expense via property taxes alone. Falls Church is at the center of a bright future in the Metro area…we must capitalize on our prized and centralized location. This Council already squandered our most valuable asset, the water system, and got nothing of value in return. Do not allow them to create the next loss from a class action condemnation suit as it will be your tax dollars that end up paying for this mistake. And, should this pass, what’s next? Let your imagination be your guide.

Speak out and oppose this change at the coming council meeting on July 22.

 


Jamie Craig is chairman of the Falls Church Board of Equalization. Mr. Craig does not own a lot that would be affected by these proposed changes.

  • FallsChurchCitizen
  • Victoria Doran

    Mr. Craig ably describes the substantial legal risk this City faces should our City Council affirm the recommendation of the Planning Commission. If this proposed change is made, taxpayers could wind up footing a bill of tens of millions of dollars, maybe more, to reimburse affected homeowners. Notice and a grace period or prospective effective date do not mitigate a taking of property rights. Only just compensations does.

    As we know, the law’s place is to set minimum standards of fairness, a system needed because all too often those in charge don’t do what’s fair out of the box. Apart from the possible illegality of this, the unfairness and injustice of it at this time is obvious.

    I am an almost thirty-year resident of this City. I have witnessed development of all types all around every year. Development of these lots has gone on for more than a decade, to the profit of their owner, as is our custom in this capitalist society. To cut this off now is unfair. One only has to look at the homes on some of the affected lots to know that this land is the homeowners’ largest asset. To take it away is to put these people’s future in jeopardy. Why would we harm our fellow citizens in this way?

    The reasons to propose this change escape me. The environment? This change doesn’t preclude over-sized homes on under-sized lots where all trees are removed. I’ve seen that happen throughout the City, including in all the construction in my backyard, along Grove Street. And, it has happened next door where two homes will be built where there was once one. It has also happened all over the City – where multi-use buildings now occupy what was once single use or vacant land and where high-rises have been built.

    The schools? As Mr. Craig says, we need vision to handle the issue, not antiquated ideas that harm our neighbors financially. Besides which, the City stands to gain more tax dollars if current law is retained, and if a homeowner is paying their taxes, they have a right to send their children to our schools. Why not incent seniors to stay with a different property tax structure? This is just one idea of many that would not harm our citizens, and, in fact, would help them.

    In short, this proposed change is legally very risky and exposes the City to grave financial loss, it is unfair to make this change now, and it is too little, too late, with no real upside to the City.

    I am saddened to hear in the rumor mill that the City Council has already made up its mind, making the public hearing on July 22 only for show. I urge the City Council to think again, and once and for all put an end to what has been an ugly chapter in this City’s history. If it moves forward as is rumored and affirms the recommendation with a grace period, then the City will be adding another chapter to this story, one that will include a lawsuit, with uncertain and potentially huge financial ramifications.

    Victoria Doran, J.D. and homeowner of 1203 Lincoln Avenue

    • Slo Ride

      Victoria, I’m confused. I don’t see how justifying the legal consequences of a change in zoning uses with an inaccurate description of the change (there is no proposal to vacate or extinguish lot lines) and using inapposite references State enabling legislation for subdivision ordinances ably describe legal risk? I also don’t see how presenting an estimate
      of lost value of $450,000 at current market rates with no supporting facts ably describes the consequences.

      Based on the City’s assessment information and your post, your property would increase in value by exactly $276,000 if you house was demolished and your substandard lots were placed in separate ownership based on
      exactly equal lots on Lincoln Avenue. That $276,000 is not included in assessed value at 100% of market value which means that the rest of us taxpayers are subsidizing you and your windfall. Looking at your side of Lincoln Avenue alone, all of the recently separated 6,000 square foot lots are assessed at $372,000 and combinations of two 6,000 square foot lots that still include a single house have land assessed at $468,000 or $234,000 for each lot. Have I ably described the impact on you?

      I would have hoped that the court appointed chair of the Board of Equalization would have recognized this unequal assessment process or
      at least have noted that potential gains have not been taxed at 100% of market value. Your property and the commentary author’s property are on the list that may be impacted by this change (Thanks FallsChurchCitizen
      for the link). ‘Nuff said.

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