Prior to the June 14th, 2010 Planning Commission, I had a discussion with Planning Director Randy Wingfield about his inclusion in a proposed Sidewalk Ordinance of the statement that defines Open space as: "Any space reserved for common use (as among a homeowners association or as common space in apartment complexes) as to provide for outdoor living, patios, pools, lawns, play areas, walks, wooded areas and the like, but not including driveways and parking areas
with the exception of driveways and parking areas strictly for community buildings, picnic shelters, ball fields, trails, pools, and similar common use amenities located within the open space." (THE NEXT PLANNING COMMISSION MEETING WHERE THIS IS DISCUSSED OCCURS 6/29/10 AT 4PM AT TOWN HALL . Historic District Overlays are also on the menu...hope to see ya there.)
The words in bold print have been added to the definition of "open space" provided within the Code of the Town of Christiansburg.
According to the Planning Director, since the State does not specifically exclude such community parking areas from being called "open space" it is perfectly legal for the Town to include them. My question pertains to the fact that Virginia is a Dillon Rule State which means.
Where this gets a bit confusing is in the Open-Space Land Act
(§ 10.1-1700 et seq.) which allows for tax credits of up to 40% of the property's value for land dedicated as open space.
According to §
58.1-3230. Special classifications of real estate
established and defined.
"Real estate devoted to open-space use" shall mean real estate used as,
or
preserved for, (i) park or recreational purposes, including public or
private
golf courses, (ii) conservation of land or other natural resources,
(iii)
floodways, (iv) wetlands as defined in § 58.1-3666, (v) riparian buffers
as
defined in § 58.1-3666, (vi) historic or scenic purposes, or (vii)
assisting
in the shaping of the character, direction, and timing of community
development or for the public interest and consistent with the local
land-use
plan under uniform standards prescribed by the Director of the
Department of
Conservation and Recreation pursuant to the authority set out in §
58.1-3240,
and in accordance with the Administrative Process Act (§ 2.2-4000 et
seq.)
and the local ordinance. Real property that has been designated as
devoted to
open-space use shall not lose such designation solely because a portion
of
the property is being used for a different purpose pursuant to a special
use
permit or is otherwise allowed by zoning; provided that the property,
excluding such portion, otherwise meets all the requirements for such
designation. The portion of the property being used for a different
purpose
pursuant to a special use permit or otherwise allowed by zoning shall be
deemed a separate piece of property from the remaining property for
purposes
of assessment. The presence of utility lines on real property shall not
be
considered in determining whether the property, including the portion
where
the utility lines are located, is devoted to open-space use. In
determining
whether real property is devoted to open-space use, zoning designations
and
special use permits for the property shall not be the sole
considerations.
From the Town Code: Sec. 30-56. Development standards for apartments.
... (e) At least 400 square feet of commonly usable open space shall be provided for each dwelling unit. Such space shall be of such location and dimensions as to provide for outdoor living, patios, pools, lawns, play areas, walks, wooded areas and the like, but not including driveways and parking areas.
There are numerous other instances in the Town Codes where driveways and parking areas are specifically excluded from being considered "open space". In fact, the Town Code is full of instances where "open space" and "green space are used interchangeable for things like defining the amount of front yard a residence/complex must have (again specifically excluding impervious surfaces such as driveways and parking areas.
What we have here is a situation in which the property owner, homeowner's associations, etc. could be working to obtain tax credits normally given for the preservation of open space, in a form that is not of an impervious surface, for land that is nothing but a large paved parking lot.
I have several concerns with this issue. Not the least of those concerns is inconsistent applications of requirements for pervious surfaces. Where issues related to open space are related to stormwater management, this is particularly important because the inclusion of impervious surfaces does little to help with stormwater management. And, when owners are expected to obtain tax credits for said 'open space', the presence of proffers or conditions is not sufficient to justify that credit and the owner could find themselves being denied the tax credit or even having to pay back that which was given inappropriately.
In establishing standards which are in direct conflict with the bulk of the Town Codes, there rest the strong potential for misunderstandings and for misapplication of the code.
Mr. Wingfield stated during the meeting that he would refer the wording of the document to the Town Attorney for verification. I hope that he does so. We have already had one recent event where the Planning Commission spent extensive time and energy working on an Ordinance Amendment only to have the Town Attorney advise Town Council, prior to a vote on it, that it was illegal.
My biggest question in this is where is the presence of the Town Attorney when these things are being worked upon my the Planning Commission. Shouldn't the attorney be present to let them know when they are doing something that would create problems or is in direct violation of State Laws?
Another interesting note was that it was argued that 'green space' could be those sections of the property where the slope is significant and the sloped areas could be accepted as green space as a means of preventing storm water issues. So it looks like the goal is to pave the flat areas and save the areas of 25 degree slope or so as green space. The only real problem with that is that the sloped areas do little more than direct the flow of stormwater and historically this has been directly into people's back yards and/or homes. Now add a lot of impervious surfaces for large parking lots and you've added a lot more water while removing the very lands that could have provided for some water absorption. I'm not sure I can see the logic in this approach. It will be interesting to see what unfolds in all of this and who reaps the benefits.