F.C. Council Mulls New ‘Sub-Standard Lot’ Housing Fix

Shunning previous attempts to tinker with property rights, the Falls Church City Council gained an informal consensus at a work session Tuesday night to an entirely new approach to limit oversized residential development on small lots in the City.

Rather than its controversial earlier plan to prohibit development on many of the City’s hundreds of small, so-called “sub-standard lots,” the Council leaned Tuesday toward height and setback limits that would not prohibit development, but restrict it to homes proportional in size to the lots.

In particular, the Council members favored lowering the height limit and removing any setback waivers that currently exist for such lot.

They also leaned toward lowering the percentage of residential properties covered by impervious surfaces from 35% to 30%, but to leave the primary home lot coverage limit at 25%, not lowering it to 20%.

No votes or final decisions were made. The matters were all referred back to the City staff for inclusion in a new draft ordinance that the Council will review at another work session before bringing to any, even preliminary, vote.

The City’s Planning Department chief Elizabeth Friel noted that there are about 260 sub-standard lots at play in the City now, and that under current law, as many as 150 of them could be developed with new housing of some form.

The Council was in agreement that it should not rush to any such changes too quickly. Although earlier plans had been approved on their first reading and tabled, the Council will go back to a new first reading on all the residential housing reform measures and that will not be until Sept. 25 at the earliest. Final approval would not occur prior to mid-October at the earliest.

“We want to make sure that our citizens are fully aware of the opportunities they will have to assess and comment on our latest proposals,” Mayor Robin Gardner said.

All Council members except Hal Lippman were present at Tuesday’s work session.

Acting City Manager Wyatt Shields summed up the general sentiment of the Council on the new approach to handling the sub-standard lots issue, saying that “proportionality” was the key. “Maybe there needs to be a formula for a ratio of building height to lot size,” he remarked.

A proposal for proportionality would be “less legally ambiguous” he suggested.

The Council last month tabled its earlier approach to limiting development on sub-standard lots when it was suggested that their plan might be in violation of fundamental property rights. That notion was fueled by remarks from F.C. Planning Commission chair Ruth Rodgers that the plan represented a “deprivation of rights.”

A further incentive to move away from the earlier approach was provided in a letter from attorney John H. Foote of the Walsh Colucci Lubeley Emrich and Walsh law firm, representing a Falls Church sub-standard lot owner, Anton Schefer.

Foote challenged the opinion of Falls Church City Attorney Roy Thorpe, who had put his legal blessing on the earlier approach, saying that an attempt to limit development in the manner proposed would violate Virginia’s infamous Dillon Rule. The Dillon Rule stipulates that nothing is permitted at the local level of government that is not specifically authorized by the state.

Thorpe told the Council at the work session Tuesday, “I haven’t bought Mr. Foote’s argument lock, stock and barrel, but it is well reasoned.” He provided copies of a lengthy correspondence to his office from Mr. Foote to all members of the Council.

Council member Dan Sze once again took up the cause of providing incentives, or bonuses, to home builders to encourage good design, the construction of front porches, the retention of a lot of trees and placing garages in the rear. It’s a policy practices in Arlington County, he noted, and is a better approach than attempting to craft legal prohibitions.

“This all needs a larger, overall study,” he insisted. “We don’t want to do things that will result in people simply not building, at all, and hurting our tax base.”

Members of the City’s Planning Commission were also present with the Council Tuesday to provide their input on the proposals. Planning chair Rodgers stressed that it was important to keep in mind the “policy objective” of proposed residential development reforms. Mayor Gardner responded that it had to do with limiting density in the City’s residential neighborhoods.