In order to compensate for old-growth trees that were cut down, developer John Batal has offered to plant more and larger trees.
The trees, however, are not really the issue, said area residents who came to speak at the Fairfax County Planning Commission hearing on Wednesday, Sept. 14. “I am less upset with Batal Corbin, LLC than I am with the process,” said Flint Webb, a Goat Farm neighbor.
“I confess, I don’t care one whit about the trees,” said Tim Reed, of the nearby Dunn Loring Woods Civic Association. The real issue, Reed said, was the commitment to save the trees. “It was a promise by this developer.”
The land known as the Corbin Property, or the Goat Farm, had been zoned to allow one house per acre on the 1-acre lot at the corner of Gallows and Idylwood roads. In 2003, the Fairfax County Board of Supervisors approved Batal’s application to rezone the property to allow twice the number of houses. In exchange, Batal agreed (the more formal term is proffered), among other things, to preserve some of the larger trees on the property.
During the first stage of construction, some of those trees were removed. A factual dispute exists between Batal and Fairfax County about how many trees identified for preservation were actually removed. Further complicating the issue, some changes to the board-approved tree save plan were made on-site.
THE GOAT FARM case has raised the issue that is much larger than trees, however. Can Fairfax County enforce the terms of the rezoning agreements it makes with developers?
In January, Barbara Byron of the county’s Zoning Evaluation Division, determined that as a result of a loss of tree cover Batal was no longer in substantial conformance with the rezoning. The only possible solution, Byron noted, was through an action of the Board of Supervisors.
Supervisor Linda Smyth (D-Providence) noted at the time that the county does not have the authority to rescind the rezoning agreement. A monetary value was attached to the trees, so Batal could be fined for removing them. However that fine was capped at $20,000, and the 14 houses in the development are advertised to be selling for $1.5 million each.
The county can, and did, stop issuing the permits necessary for Batal to continue to develop the site. Batal was allowed to continue some activities under permits that had already been granted.
Batal appealed the finding to the Board of Supervisors. The board heard the case last spring and deferred decision on the appeal. It would not rule until Batal had filed a Proffered Condition Amendment.
Batal filed for the amendment and the Planning Commission conducted its public hearing on Sept. 14. Batal’s attorney, Frank McDermott, stressed that the amendment should not be construed as an admission of having violated the rezoning. McDermott said that he disputes several facts as presented by Fairfax County Planning Staff. However, in the interest of moving the development forward, he is applying for the amendment.
McDermott did concede some violations, however. Perhaps the most dramatic example was a photo shown to the commission of a large piece of construction machinery sitting inside the tree preservation area. The machine was even sitting on top of the fence that had been erected to protect the trees and to stop workers from going into the area.
Batal is offering to plant more and larger trees than he had in the original plan. As a result, McDermott said, the area will have more tree cover, faster.
Some members of the Planning Commission questioned why they should accept the application this time. “What guarantee can this commission have that two years from now we won’t be here again?” asked Commissioner Frank de la Fe (Hunter Mill).
“It’s really disconcerting to me that a blatant violation like this can take place,” said Commissioner Laurie Frost Wilson (At-large). Later in the hearing, Wilson again expressed frustration with the development
“I tried to figure out a way to throw the book at you guys and keep you from developing,” she said.
McDermott said that they “regret significantly” those violations that he does concede. However, he said that they were dealing with a case of a mistake made by an employee, not a directive of management. While his client will make an effort to stop workers from going in there again, McDermott said that short of standing on the site “with a shotgun” there can be no absolute guarantee.
Furthermore, McDermott said since the initial stages of the project have been completed, activity in those areas is unnecessary. “There shouldn’t be any reason to go into the tree preservation areas except to plant trees,” he said.
Mike Knapp, urban forester for Fairfax County, said that he will also work to ensure that no further violations occur. He said that he will personally be reviewing this case from now on. “I will not delegate it,” Knapp said.
During the hearing, residents pointed to specific language about the new trees that they said are too flexible. McDermott pledged to continue to work with the community to develop language that is acceptable to everyone.
The Planning Commission deferred its decision on the amendment until Oct. 6 to allow time for those changes.