Zoning rule must be fair

By The Daily Progress

Published: October 2, 2008

That’s an eye-popping story the Albemarle County Planning Commission has there: a developer who won a rezoning some 30 years ago and only recently started building — based on standards that are decades old.

Some reasonable mechanism ought to be in place to encourage developers to build under modern standards.

The key is “reasonable.” And fair.

And county leaders at all levels ought to think long and hard about the spreading repercussions of any move that allows new requirements to be imposed on old agreements.

At the very minimum, such a mechanism ought not be applied retroactively.

Current rules allow developers to choose whether to abide by existing standards or those in effect at the time of the rezoning. Most developers choose existing standards, knowing that is likely to make their projects more competitive in the modern market. Occasionally someone opts for the old standards in effect at the time of the rezoning.

That should continue to be the case for all currently approved developments. If the county changes its rules, the new requirement should apply only to developments approved after adoption of the rule change.

A zoning approval is a type of contract, with expectations and requirements applying to both sides. Such agreements should not be subject to change because of political changes in leadership, altered economic conditions or other.

Imagine how retroactive rule changes might play out elsewhere. You place your land in conservation easement, believing you are protecting the land forever. But it becomes politically expedient, or economically compelling, for leaders to approve housing developments on preserved lands. Is that fair? Reasonable?

The Planning Commission is considering a requirement that developers prove they have a vested right in the property before they are allowed to go forward under old standards. But the commission admits it hasn’t decided how to define “vested.”

Consideration of a rules change is only in early stages, so commissioners can’t be expected to have such details. But details are crucial. How the commission defines “vested” will determine whether the new requirements are fair and reasonable, or restrictive and repressive.

One approach would be to “sunset” zoning approvals, requiring that they automatically expire after, say, 10 years — or whatever reasonable time limit is negotiated during public debate over the issue. After expiration, developers would have to apply again for rezoning and abide by any new decision that is handed down.

Much work remains to be done before any such rules change comes close to being ready for adoption. And the work isn’t done until all sides — government, developers, landowners, the public at large — have a chance to understand the issue and offer their input.

We all have a vested interest in the manner in which development zonings are approved — and in this case we don’t need anyone to define “vested.” We know exactly what it means. It’s our county, our government, our quality of life, our sense of justice that are at stake.