In some ways, land use is like judo. What matters is not how much force is applied, but knowing when, where and how to apply that force. Supervisor Linda Smyth (D-Providence) started a "land-use dojo" on Monday, May 2 at Fairhill Elementary, with a series of workshops designed to educate people about the process.
"What we’re doing here is trying to give you all some background on land use," Smyth said to the roughly 60 people in attendance. "We hope to be able to give you the tools you need to more effectively engage in the process."
"I think it's useful to have this," said Donald Morrison of Pimmit Hills. Morrison said he came because he is concerned about the lack of affordable housing in the county, and he wanted to learn about how he might be able to work toward increasing it. "There’s obviously a lot to know," he said.
Those in attendance, many of whom have been active in land-use issues in general, and in the Fairlee/MetroWest development in particular, first listened to four speakers explain different facets of the process.
This meeting focused on speakers who explained the limited number of things that the county controls and the difficulties it sometimes has in enforcing regulations.
Karen Harwood of the county attorney’s office explained the Dillon Rule and its application in terms of planning and zoning. The Dillon Rule, established by Iowa Supreme Court Justice John Forest Dillon in 1873, states that localities only have powers that are expressly granted to them by the state. The only exception to this is powers that are "essential" to local government, such as maintaining a fire department, Harwood explained.
The only reason that counties can implement any land-use laws is because the power was granted to them to do so. "It is by the grace of the General Assembly that a locality can zone anything," Harwood said.
She gave an example of a change to the county zoning ordinance in 1989 that was overturned by the General Assembly. "The state has incredible power for our ability to structure our zoning ordinance," Harwood said.
Harwood also gave examples of more progressive zoning laws, such as impact fees for schools, an adequate public facilities ordinance or transferable density rights which are often introduced in the General Assembly and just as often defeated. These, Harwood said, would allow the county to have more control over the way development progresses. "I would like to see citizens in this county take as much interest in their state government as they are in their local government," she said.
Bruce Nassimbeni of the Department of Public Works and Environmental Services continued the theme of highlighting things the county can’t control in discussing by-right development.
EACH ZONING CATEGORY has three different types of development: permitted uses, development permitted with a special exception and development permitted with a special use permit. Special exceptions must be approved by the Board of Supervisors and require a public hearing. Special use permits also require a hearing and must be approved by the Board of Zoning Appeals.
Permitted uses may be built "by right." For example, if a 1-acre lot is zoned for one house per acre, the property owner can build his house without a public hearing. The owner must still comply with certain requirements such as setbacks and maximum building height. "If it complies with codes and regulations, we can’t stop them," Nassimbeni said.
William Shoup, zoning administrator for Fairfax County, explained his department’s role. The Zoning Evaluation Department is responsible for interpreting the zoning ordinance. "It’s not a black and white document," Shoup said. The department receives over 1,000 requests for interpretations per year, he said.
The Zoning Evaluation Department helps to write and prepare reports on proposed changes to the zoning ordinance. Since the current zoning ordinance was adopted in August 1978, it has been amended about 350 times, Shoup said.
Shoup’s department is also responsible for enforcing the zoning ordinance. Seventeen zoning inspectors work for the county, he said, and during the last fiscal year, more than 2,700 complaints were filed. This year, the department is on track for 3,000 complaints.
If a property owner is found to be in violation of the zoning ordinance, the inspector first gives a notice of violation. "We have to tell them what it is and give them time to fix it," Shoup said. About 80 percent of notices are appealed, he said, and once an appeal has been filed, no enforcement action can be taken until the appeal has been resolved.
Zoning Administration is also in charge of dealing with the appeals. "People have a right to appeal any determination of the zoning staff," Shoup said.
Depending on the type of appeal, the decision can be made by the Board of Supervisors, the Board of Zoning Appeals or the courts.
After the meeting, Morrison was happy to have found out how some of the processes at work, but left with a grasp of the complexity of the issues. "Maybe if you push in one place, it's like a balloon, it will pop out somewhere else," he said.