Zoning Ordinance Modernization Amendment
zMOD is complicated and perhaps disruptive.
Is zMOD only ‘modernization’ OR is it social engineering?
After 2 years of organizing and participating in multiple meetings with County zMOD staff, ACT4Fairfax members are gearing up to protest the Board of Supervisors’ foreseeable wholesale approval of the 741 page zoning ordinance draft resulting from its zMOD project.
We invite you to join us and voice your own considered opinions:
The Planning Commission virtual hearing is 1/28/2021 @ 7:30PM.
The Board of Supervisors virtual hearing is 3/09/21 @ 4 PM.
A wise friend explained “zMOD is 700 pages without an index and covers hundreds of complicated topics. The length is partly why nobody can understand it or summarize it. We citizens are stuck with the unmanageable length when we try to comment on it intelligently.”
Fairfax County’s ‘Zoning Ordinance Modernization’ (zMOD) started with best of intentions. A 40 year old, oft amended, sometimes obsolete, sometimes contradictory code of over a thousand pages needed updating to make it easier to read, understand and research. The addition of pictures, graphs, charts, and simpler navigation is especially welcome.
However, much has changed during zMOD’s 4 year revision process, including unforeseen radical changes to our society. zMOD has not acknowledged recent watershed events such as Covid 19, its serious economic disruption and still manifesting socio-economic transformations. To the dismay of many residents, the County is using zMOD as an opportunity to ‘modernize’ stable residential neighborhoods. These ‘modernization’ amendments have NOT been thoroughly researched or planned in terms of their potential impacts on our diverse county. Thus, the final draft is a mashup of truly helpful updates, recommendations vs. untested, trendy ideas that have no evolution within Fairfax County. Some residents may favor these proposed changes, but at its core, zoning is a public contract to safeguard residents’ expectations and general welfare. Home values and our existing stable neighborhoods must be protected -- Homes are most often the biggest assets and investments of County residents.
Several of the proposed changes in the County draft ordinance are radical, falling well outside of the existing public contract. We believe these specific proposals promote new norms and amount to de facto ‘social engineering’.
The Final Draft of this gigantic revision to the zoning ordinance is being introduced and scheduled for vote during an historic pandemic. During this time, the public is truly handicapped from responding effectively.
Developers are accorded every courtesy and advantage, but citizens are being manipulated during a crisis during which they have little effective chance of overriding the pre-determined outcome. Is presenting this 741-page draft ordinance during a pandemic even legal or ethical? The BOS seems to think so -- they recently passed a resolution extending “emergency governing powers” far beyond the end of Covid 19.
Indeed, the BOS thinks they know better than citizens even when serious deficiencies in this ordinance have been highlighted to staff. “Fixing it later” seems to be their solution vs. correcting specific known flaws. Staff acknowledges there is already a long laundry list of ‘items that will need fixing’.
The BOS true objective seems to be to eliminate or streamline ordinance processes/procedures – as evidenced by the name change of the department of ‘Planning and Zoning’ to a forgone ‘Planning and Development’.
What happens when you loosen zoning and give way to unlimited ‘Administrative Approvals’ and to the interests of developer stakeholders?
Do you think Gartner and zMOD were written to serve residents or others? You decide.
Site begins with Executive Summary followed by hyperlinked Table of Contents on page 51 of 741.
Expansion of ‘Administrative Decisions’ is proposed to replace BZA public hearings. This streamlining follows the Gartner playbook to limit resident participation in the land use process and keep them ignorant of changes affecting them. It modifies Accessory Living Unit (ALU) as well as some Home Based Business (HBB) approvals.
When decisions/approvals are made by ‘administrative staff ‘, there will be NO notice to adjacent neighbors, the larger neighborhood or impacted HOA’s.
The abolition of public hearings convened by the BZA (impartial zoning experts) prohibits civil exchange of information among homeowners and their neighbors. Specific lot or neighborhood concerns will never be aired. Instead of fashioning successful ALU’s, the ‘approval’ process will be reduced to boiler-plate development conditions and rote administrative approvals.
There is the possibility of unintended financial hardship: Homeowners may go to substantial expense to install an ALU only to find out later that their governing HOA prohibits them. Incredibly, the County refuses to take any responsibility for even suggesting to applicants that they receive permission from HOA’s in tandem with submitting ALU applications.
In the County’s vision, there will be no upper limit on the number of ALUs allowed within a neighborhood: Increased traffic, parking difficulties, tree loss – none of it will be considered
Staff’s most egregious social engineering ploy is the attempt to increase affordable housing by allowing interior accessory apartments - called Accessory Living Units (ALU’s) - in ANY single family detached home. In other words, we’re sacrificing all single family detached neighborhoods for the HOPE of ‘affordable housing’.
Even the name ALU is designed to confuse. It’s similar to ADU (Affordable Dwelling Unit) and EVERYONE, including Supervisors in taped meetings, confuses and interchanges the terms. ACT members requested a new term: Supplementary Living Units (SLU), but we were denied.
The experiment’s gaping flaw is that nowhere in the proposed amendment is there ANY discussion or definition of affordability. NONE.
After paying to construct an ALU to building code standards, how many homeowners would seek less than market rate rent?
The ALU would be approved by an ‘Administrative Decision’ only, at a proposed application cost of $200.
How will established neighborhoods retain their historic character and home values… values residents depended upon when they purchased their family’s most significant asset?
Destabilized home values in SFH areas -- especially in older, denser neighborhoods -- are unacceptable.
Homeowners purchased suburban homes and do NOT expect their neighborhoods to transition to urban districts with the risks of: overcrowded schools, roads, parks and libraries; overburdened fire, EMS and police departments; fewer trees, less open space, and increased risks of flooding from impervious surface expansion.
Citizens do NOT expect such serious changes to be imposed without sufficient notice and public referendum. Has the County even mailed a simple flier explaining these proposals to each homeowner? No, it hasn’t. We ask “Why has this most obvious form of outreach NOT been included in every notice, real estate assessment or county bill?”
How is the County planning to achieve the affordable housing goals all agree are needed? Through zMOD, the County proposes to do away with single family zoning in order to create ‘affordable housing’. Outside of zMOD, but within parallel housing policy, the County has devised a hypocritical strategy: the WDU Policy Plan amendment.
It DECREASES the required percentage of proffered NEW construction affordable dwelling units (WDUs) from 12% to 8%: A 50% overall reduction in the WDU pipeline.
The County apparently ‘negotiated’ this change with developers in 2020 but dared not unveil it before zMOD is passed! The WDU program ONLY impacts developments of 50 or more units; with land in short supply, each potential WDU is all the more valuable. The County claims that a reduction in income levels for housing applicants offsets the lower number of units proffered under the 8% requirement! How is this logical when WDUs are already in short supply?
New metro Area Median Income (AMI/combined family income) standards for employed applicants to be eligible for the 8% required work force housing will be as follows:
2% at 70% AMI
2% at 60% AMI
4% at 80% AMI
BTW, the ‘old’ percentages of AMI were 1/3 EACH of 80%, 100% and 120%. TRANSLATION: the developer community was ‘generously helping’ 2/3 of WDU applicants who were making 100% AMI ($122,227) and over. How did THAT ever serve truly deserving work force families of Fairfax County?
Other similar counties have more successful WDU programs: In nearby Montgomery County the standards are and have for YEARS required that WDUs equal 12.5% of total units and income eligibility set firmly at 65% AMI for all.
Further, future affordable units still have a far shorter contract period than Montgomery County. The term of the covenant for Fairfax County ADU’s is now 50 years for rental units. In Montgomery Co., the term is a firm 99 years. This disparity further undermines the availability of already scarce WDUs.
Since the County’s 12% WDU program began in 2007, just 1600 WDUs have been added. Sadly, the goal was 5,000 units. In contrast, Montgomery County has added 10,000+ units during this same period!
The same developers operate in both counties. Montgomery County with its stricter standards has as much development as it can accommodate and a highly successful WDU program. Why do these same developers insist on reduced contributions in Fairfax Co. when they readily accept stricter standards across the river? What drives Fairfax County to lower its standards?
With a new gig economy and current uncertainties in the job market, many more Fairfax residents are looking to start Home Based Businesses (HBB).
Under zMOD, many will be allowed to do so by administrative permit only – no more public hearings. Rules for HBB are complex but all residential structures - multi-family, townhomes and SFH – qualify. Depending on parking availability, new rules limit business types and operations. Not only can the SFH next door’ install an unannounced ALU, but the primary home and the ALU unit are BOTH allowed to run Home Based Businesses (HBB) in the same structure.
Residential signage will be permitted for both with a total of 12 square feet/parcel.
Lights and noise from additional activity will be unwelcome intrusions in any neighborhood.
Increased traffic and off-street parking become further detriments to stable neighborhoods’ character.
Loss of permeable surfaces, tree canopy and disruption of storm water management can all be unintended consequences of intensifying neighborhoods’ use without benefit of public hearings.
Link to the Nov 2020 Version of zMOD
NOTE: For ease of navigation, page numbers may be accessed by changing the last number of link above.
Page 51 begins the Table of Contents
Page 47 begins Summary of Home Based Businesses
Several proposed zMOD amendments lack any defined means of enforcement and no defined consequence. Staff assumes everyone will obey the rules. In this 741 page document fewer than 5 pages reference enforcement or penalties - pages 668-672.
In many portions of the County, enforcement is already inadequate for unpermitted ‘dwellings’, ‘apartments’/lodging houses, and insufficient off and on street parking. What will happen when new ‘market rate’ ALUs are allowed in every single-family detached home? How will the County meet additional inspection and enforcement pressures?
Code complaints in Fairfax County are ‘citizen driven’ - a neighbor vs. neighbor complaint system. Such a system will not promote friendly, safe neighborhoods. Practically speaking, the denser the neighborhood, the higher the expectation of problems and conflicts.
For ALU’s, with the ‘Administrative Permit’, there are no unscheduled inspections until the permit expires in 2 to 5 years. Then, only with advance appointment, may an inspector enter the premises. We ask – will these infrequent inspections promote neighborhood stability?
What are consequences for violations? Nowhere is this clearly stated. How will the rules have any force?
Examples of rules violations would include but not be limited to:
# of allowable ALU residents.
# of HBB employees, deliveries, customers/day, timing of visits, contaminants or debris onsite; business signage.
# of allowed vehicles.
Unauthorized changes in business size and scope.
Many changes proposed in the zMOD ordinance will negatively affect our already stressed environment and the way we live in our communities.
The science of on-site septic systems and private well protection is complex. Yet staff is unconcerned that chemicals used in home based beauty salons, such as bleach, coloring, straighteners, etc. are deadly to healthy septic systems and clean well water. Chemicals will infiltrate the groundwater, resulting in watershed and well contamination within surrounding areas. It is well known that that once a water supply is contaminated it’s practically impossible to remediate. Will residents know about chemical pollutants in their water BEFORE becoming ill? Staff’s attitude is “we don’t know about this, so it’s OK.” FACT CHECK FOR STAFF: Fairfax County Health Dept. is NOT responsible for private well contamination!!! So everyone had better be concerned about watershed pollution from KNOWN caustic chemicals introduced by HBB’s in rural/septic neighborhoods. Many homes have NO other source of potable water.
The addition of increased septic loads by both home based business activities and additional ALU residents or customers in areas reliant on septic and wells is problematic. Now, after repeated requests, there will be an inspection required to assure that existing private waste and water infrastructure is safe and sufficient for an ALU permit. However, unless intermittently re-checked, septic systems and wells may not remain environmentally sound. Despite this, no on-going monitoring is being proposed. No septic inspection is required for HBB. This is environmentally irresponsible.
Also of critical importance are CEC’s (Chemicals of Emerging Concerns). These are usually pharmaceutical metabolites, but they may include any HBB chemical discarded into a septic system; these substances eventually migrate into the groundwater and stream watersheds, posing potential regional hazards. Who hasn't heard about the intersex fish in the Potomac River? Those fish are manifestations of CEC's.
What about impacts on air quality from smoke inflicted on nearby dwellings resulting from the proposed relaxing of Hookah Parlor criteria? No one seems concerned except for the nearby residents whose decks, open windows and back yards will soon be polluted with carcinogens, and rendered unusable.
These problems - and others too numerous to list - will degrade the
quality of existing neighborhoods.
Fairfax taxpayers do not want to live in diminished environments.