For the second time in about a month, Planning Commissioners wrestled with the idea of the county exercising it power of eminent domain to help a private development.
Renaissance Housing Corporation constructed the Kensington Square subdivision on Route 50 near Rugby Road. The same developer is now proposing additional developments, Kensington Manor and Kensington Parc, be built on either side of the existing development. Taken together, the two new developments consist of just over 37 acres. Renaissance is proposing to build 63 detached houses, 14 affordable townhouses and 69 units in so-called “greathouses.”
Greathouses are similar to townhouses in that they are clusters of three or four attached units. However, a greathouse is designed to look like one very large house.
As part of the project, Renaissance is proposing to make a variety of road improvements to both Route 50 and Rugby Road. However, they don’t own all of the land they need to accomplish the construction. A strip along Rugby Road is owned by the Fairfax Church of Christ.
Without that strip of land, the road improvement could not be constructed. Without the improvement, the Fairfax County Department of Transportation would recommend denying the application. “It’s essential, I think,” said Mike Davis of the department.
As a condition for the development, Renaissance is proposing that if they are not able to make a purchase agreement with the Church, they are to ask the Board of Supervisors to condemn the land. Condemn is the term used when a government exercises its power of eminent domain to force a private landowner to sell land for a public good.
A similar situation arose in a development in the Mason district. A developer needed a piece of land that was owned by a church to construct a road improvement and had put in the clause about condemnation.
That case was resolved quickly when the developer and church were able to negotiate a sale agreement.
This situation is also likely to end with a negotiated agreement. Dave Golden, a representative of the church, noted that communication with Renaissance had been good, and that negotiations are underway. “Our preference is that it not go to a condemnation situation,” Golden said.
Several Commissioners, however, balked at the concept of condemning the land. “It scares me to use that kind of power for something like this,” said Commissioner Laurie Frost Wilson (at large).
“I don’t understand why this language is even in this document,” said Commissioner Janet Hall (Mason). Hall noted that it is the developer’s responsibility to make the improvement and that they should not have to ask the county for help. “The applicant is responsible for making it happen. The fact that they ask the Board [of Supervisors] or they don’t ask the Board doesn’t make it happen.”
Kris Abrahamson of Department of Planning and Zoning staff said that the clause has been used for about 15 years. It is done to ensure that the developer has engaged in making a good faith effort to acquire the property before claiming that they are unable to complete the improvement and ask the county for some sort of relief. “They’re not really that uncommon,” Abrahamson said.
The board is under no obligation to go through with the condemnation, Abrahamson said.
Greg Reigle, attorney for the developer said that his client would rather acquire the land by purchasing it from the church. The condemnation process can take a long time and push the development timetable back. “The incentive is pretty powerful,” he said.
The issue of the government taking one property owner’s land and giving it to another private company for redevelopment purposes was highlighted during the last term of the U.S. Supreme Court in the case of Kelo v. New London, Conn.
The Court ruled that governments may take land from one property owner to give to another in a development situation. The decision has generated substantial opposition from both ends of the political spectrum.
Commissioner James Hart (at large) speculated that perhaps it was this court ruling which has drawn the commission to pay more close attention to the issue. He suggested that a commission subcommittee study condemnations. “I think this is a very weird area. I think we have to try and figure out where that line ought be drawn,” he said.
The development in this case is likely to be approved. Area residents raised concerns about issues surrounding how the new developments will be integrated with the existing development. These concerns are being addressed by the developer.
The Planning Commission deferred its decision to Oct. 5, so that the resident’s concerns could be incorporated into the development proposal. The development must go to the Board of Supervisors for a Public Hearing and final decision, but a date has not yet been scheduled.