When the Corbin Property was granted its rezoning, three areas were set aside in order to preserve environmental features — trees — in them. "What we have, here, are violations in all three areas that were to be preserved," said Supervisor Linda Smyth (D-Providence) at the Board of Supervisors' April 25 meeting.
The 7.7-acre property, sometimes called the Goat Farm, is located at the corner of Gallows and Idylwood roads. It had been zoned for one house per acre before the rezoning was granted in October 2003. The rezoning increased the density to allow up to two houses per acre in a cluster zone. Clusters allow houses to be built on smaller lots in order to preserve environmental features.
As part of the rezoning, John Batal, the developer of the property, agreed to a set of proffers, including the three tree protection areas.
During the course of preparing the site for construction, contractors working for Batal's company may have removed trees that were to have stayed and entered the preservation area with heavy equipment, damaging other trees.
One of the proffers set dollar values for each of the trees to be saved. If any of them were removed, then Batal would be responsible for that amount of money. However, the total amount for all of the trees was $20,000. A sign on Gallows Road advertising the development states that the prices for the 14 houses start at $1.5 million each.
"There is a fundamental problem here, and that is supervision and oversight," Smyth said. "What I see here is that instead of extra care, instead we had the opposite."
SMYTH ASKED Barbara Byron of the Department of Planning and Zoning to investigate the situation. Byron found that the development was no longer in conformance with the approved plan. The rezoning, she noted, was granted in order to protect the trees. Since the trees were not protected, she questioned the rationale for allowing the cluster zone.
The proper solution for this, Byron said, would be to come before the Board of Supervisors for a "Proffer Condition Amendment," that would allow the public to weigh in on the process and any possible solutions.
In the interim, Byron ordered that no more permits be issued for construction on the property until the matter is resolved. A stop-work order was also issued, but that was later overturned by the Board of Zoning Appeals.
"What we have here is an interpretation that I believe, and submit to you, is being forced," said Frank McDermott, attorney for Batal.
McDermott disputed Byron's findings, saying that the disturbance was not as great as had been found by the Fairfax County Department of Planning and Zoning. McDermott also disputed the health of some trees and said that some of the disturbance in one area was the result, not of heavy machinery, but of the people doing the work by hand.
He also noted that if a proffer condition amendment was required, a process that he said would take six to nine months, it would force Batal to default on a series of loans.
Byron said it would be possible to expedite the process and it might be able to be completed in three months.
McDermott presented the board with a plan for remediating the situation in the few cases where he acknowledged that contractors made mistakes.
Mike Knapp, of the county's Urban Forestry division of the Department of Public Works and Environmental Services, pointed to parts of the remediation as inadequate. "This 46 inch tree [which was removed] is not comparable to a three and four inch caliper tree [which is proposed]," Knapp said.
Smyth agreed. 'How do you replace something that was to be preserved," she said.
During board deliberations, Supervisors Dana Kauffman (D-Lee) and Cathy Hudgins (D-Hunter Mill) each expressed concern over the situation and called it "serious."
Supervisor Elaine McConnell (R-Springfield) said the developer may be being dealt with too harshly. She noted that during a development in her district, an historic building had been accidentally destroyed and the developer had only been fined $10,000. "Here, we're talking about a tree," she said.
Smyth noted the request for the proffer condition amendment had been made several months ago, and could be much further along in the process. "There were things that could have been done along the way," she said. She also criticized McDermott's remediation plan for a lack of input from the neighboring residents.
McDermott said that he did not agree with the need for the proffer condition amendment and was unable to set up meetings with the residents.
The board deferred decision on the issue until Monday, May 9.