Covington_DeveloperRights

Wally Covington, Brentsville Supervisor (Republican)

Covington emphasizes developer rights, Dillon Rule

(13 April 2006 e-mail to Prince William County Republican Committee in response to growing Republican opposition to the Brentswood development/rezoning request)

----- Original Message -----

From: Wally Covington

Sent: Thursday, April 13, 2006 12:43 PM

Subject: Brentswood Debate

Contrary to popular belief, I have not yet made up my mind concerning the proposed Brentswood development, pending public testimony, the applicant’s presentation and rebuttal, board questions, and board discussion – otherwise known as a public hearing. What I do embrace about Brentswood – and any other proposed rezoning in the Brentsville District -- is the time honored republican principle that an individual can offer a new idea in the marketplace of free enterprise and the individual is guaranteed a fair, balanced, factual airing of that idea. At the risk of offending some, I think a review of some Virginia land use issues is in order.

Various county and state agencies, in addition to county Planning staff, have all had the opportunity to comment on Brentswood. Although the Planning Commission, a non-elected body has now held their own public hearing, the Planning Commission, like the Planning staff, is strictly an advisory body to the Board of County Supervisors. The applicant/property owner is entitled to continue to revise the proposal based upon comments received along the way right up to and during “real time” before the Board of County Supervisors’ public hearing, prior to the vote. Therefore for an elected official to compromise this process and take an irrevocably public stand at a Republican Party meeting, for or against a project is, in my opinion, irresponsible.

In Virginia – and 39 other states --- the Dillon Rule (authored by a Republican) restricts elected officials from applying the suggestions made by many in the recent threads I’ve read about Brentswood. Virginia does not have “home rule.” Home rule is based on the concept of a “moral right” to local self government. I repeat, we don’t have home rule. To paraphrase the Dillon Rule, whatever powers local government has, that power is conferred upon the local government by the state and Dillon further emphasizes that if there is a doubt as to whether the local government has the power, then they don’t.

Traditionally Virginia courts have applied the Dillon Rule in a strict constructionist manner. Fairfax County has already unsuccessfully tried to implement some of the suggestions in this thread, e.g. a moratorium on new building, or no rezoning without adequate public facilities in place. In fact, the Virginia Supreme Court ruled that public facilities should follow rather than precede development.

Virginia property owners have a vested right to develop properties. Local governments cannot restrict this right for a greater public good or require property owners to construct adequate public facilities, e.g. schools, roads, libraries, to support their developments. These amenities are ONLY obtained through the voluntary proffer process, e.g. individual, private negotiation with the developer. Proffers come only with rezoning cases, like Brentswood, in contrast to some of the “by right” development (when a property does not have to be rezoned, e.g. 1 house on 10 acres in the Rural Crescent) which is constructed with no public facilities.

Ironically, the Dillon Rule was initiated by those who, like many who have chimed in on the thread, had a distrust of local government. In Virginia, an unsuccessful challenge to the Dillon Rule was last attempted in 1969, by the Commission on Constitutional Revision, chaired by former Governor Albertis S. Harrison, Jr. (Democrat.)

We can’t have it both ways. The Prince William Comprehensive Plan (upon which many agencies, including Planning staff make their determinations) is not a regulatory document and adherence to the objectives therein is not mandatory by law. The local zoning ordinance (which is regulatory) can be changed simply when an individual property owner requests a change by the process of a public hearing before the local Board of County Supervisors. Thus, the Brentswood proposal was properly initiated through a request for a Comprehensive Plan amendment (CPA) and rezonings.

The “next step” in the process is to give the proposed development and proffer statement a public hearing before the Board of County Supervisors. The Board will consider Brentswood at our May 16^th meeting at 7:30 PM, in the McCoart Building. The public is invited to attend.

In the meantime, I intend to avoid any potential conflict of interest by reserving judgment on this rezoning until all the parties have had a chance to make their case at the public hearing. (Section 2.2-3112A2 of the VA Code Ann.) To otherwise influence the process by which this application of law is administered, e.g. an elected official taking a public stance on a rezoning prior to a public vote, compromises the elected official and in my opinion, negates the fundamental spirit of the Dillon Rule.

What is difficult about the Brentswood proposal is that in Virginia, transportation decisions, for the most part are not made on the local level, which makes coordination of land use and transportation difficult. Ultimately, even the best laid plans and/or public-private transportation initiative can be thwarted politically, by the Governor appointed Commonwealth Transportation Board (CTB), as we have already seen in the Brentsville District when funds to widen Rt. 28 were “reallocated” (translation: “disappeared”) in the late 1990’s, during the last VDOT overhaul.

In the case of Brentswood – real money proffered by the developer --- as opposed to VDOT/USDOT allocations strung out over six year plans revised each year – does potentially give Prince William County more authority, more local control over land use in this case. The playing field rendered unequal by the Dillon Rule, suddenly becomes more competitive when real dollars are delivered to a local jurisdiction.

Local governments have been recently criticized for hiding behind the Dillon Rule while in the same breath, citizens criticize elected officials for failing to recognize the cumulative affect of the “piecemeal” approach to rezonings. Viewed within the context of vested property rights, the vast scope of the Brentswood project and unprecedented associated proffers presents a unique opportunity to Prince William County to tackle this pitfall commonly attributed to induce sprawl. At the very least, it’s worth an educated, in depth look.

I caution you to be open-minded and ensure that you are quoting fact prior to pointing fingers at your elected officials. Our party will not be served well by institutionalizing and perpetuating misinformed legislative policy.

I appreciate the invitation to appear before the Republican Committee in a debate on this issue. However, a better idea would be to invite the applicant to present, or debate Mr. Pugh. To better educate citizens about the legislative aspects of this issue, I am happy to discuss the pros & cons Brentswood, but I do not want to be pitted as the “pro” speaker in a debate. Also I would hope that the discussion would be organized and publicized in such a way with no more than two Supervisors appearing in an official capacity which might lead citizens to think we are violating the spirit of the Freedom of Information Act.

My office door is open. My email address and office phone number are published so that any member of the public who wishes to lobby for or against a specific proposal has access. I believe I have been available to you all in this respect.

I intend to approach the Brentswood vote in the same fair, unbiased way in which I have cast every other vote as Brentsville Supervisor, as an informed legislator, delegated authority by the party who nominated him to represent them and governing by the will of the people who voted for him to serve them. I don’t think you’d expect anything less of me.

FYI – I will be “out of commission” for a few days as I celebrate the holiday with my family. Happy Easter/Passover to all.

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