Paradoxical goals are hard to reconcile

It is a curious irony that the most potent weapon in Fauquier’s largely successful 40-year struggle to stem the tide of rural exurbanization — large-lot zoning applicable to more than 80 percent of he county’s land area — is also the most formidable impediment to the achievement of two other county objectives: an adequate supply of affordable housing and the concentration of future population growth in its service districts.

The county’s efforts to channel growth into what state law refers to as its “urban development areas” (UDA’s) have thus far proved an abject failure.

Of 825 single-family detached and 32 modular housing construction permits pulled between 2006 and July of last year, not one was in a UDA.

This failure was not a function of state UDA density standards (four single-family detached homes, six townhouses per acre), because they didn’t take effect until last year.

It was rather the result of a huge oversupply of single-family detached by-right development opportunities scattered across the county (more than 3,700, according to a county planning staff estimate) and a continuing tradition of predictably enormous lot sizes (an astonishing average of 6.5 acres per house since 1993, according to urban planner Ed Risse).

These factors, and the proven negative public fiscal implications of any house selling for less than $700,000, have rendered private construction of affordable housing a virtual oxymoron in Fauquier County.

The costs of land and the scale of required developer proffers alone make it almost impossible, even after the 2006 housing price bubble collapse, to offer even modest housing units for less than $300,000 each.

It is politically inconceivable that Fauquier’s voters would voluntarily surrender a zoning policy critical to the preservation of the county’s rural agricultural character. At the same time, however, the county must comply with a growing list of state standards that, unless modified, will fundamentally change the character and scale of Fauquier’s development.

Chief among these state requirements are those making the installation of alternative on-site septic systems (AOSS) a by-right accessory use throughout the commonwealth and establishing density and other standards for UDA’s.

The 2009 AOSS statute effectively gutted Fauquier’s de facto limitation on development in the two-thirds of the county with impermeable soils.

The 2010 UDA law not only specifies minimum densities, but also requires localities to scale their UDA’s to accommodate all of their projected population growth for the next 10 to 20 years.

More importantly, the UDA law explicitly prohibits localities from down-zoning other areas to offset mandated UDA densities.

These realities significantly narrow the public policy options available to Fauquier to reconcile its slow-growth tradition with a changing housing paradigm dictated by ongoing diminution of the national wealth.

Moreover, even the available options have political and economic implications that may limit or entirely foreclose their implementation.

For example, if perpetuation of Fauquier’s large-lot zoning is a political given, reducing the number of by-right development opportunities in that context would appear to be one of the few options available for slowing the growth inherent in the state AOSS and UDA mandates.

However, the tools available for this task — limiting development on steep slopes and in flood plains; expanding transferable development rights, and purchase of development rights programs; and accelerating Virginia Outdoors Foundation, Land Trust of Virginia, PEC and county stewardship of conservation easements -– may prove to be both politically unacceptable to landowners with progressively less valuable properties, and economically infeasible for governments and non-profit entities alike facing unprecedented fiscal shortfalls.

Where do these ironies leave a county anxious both to preserve its slow-growth tradition and to address demands for more compact and less expensive housing options?

Without passing judgment on the legal validity of its arguments, but with deep trepidation about the implications of their judicial acceptances, I recommend perusal of the 35-page complaint filed by Catlett Farm, LLC in the wake of the board of supervisors’ 3-2 denial on Dec. 8 of the developer’s rezoning and special-exception applications for a 225-unit development of its 793-acre property in Catlett.

The complaint alleges that “the denial of the rezoning in the context of Fauquier’s planning and zoning policies constituted impermissible exclusionary zoning.”

The county, the developer charges, “…has affirmatively pursued policies that are intended to, and have the effect of, placing impermissible burdens on the ability of persons of low and middle income to purchase houses in the County [,] thereby creating and perpetuating such exclusionary zoning that Catlett Farm has the right to contest as the provider of affordable housing.

“Such exclusionary zoning is not only illegal under Virginia law, but is a deprivation of the equal protection of the laws forbidden by the United States Constitution.”

Leslie Cheek, III

Warrenton