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Crows Nest Harbour TDRs: Needed progress

Sunday, October 6, 2013 12:00 am

VIENNA—On Aug. 28, the Planning Commission recommended approval of some amendments to the Transferable Development Rights Ordinance. Some recent comments on this newspaper’s blog contain, I submit, incomplete information or apparent assumptions that we think deserve a response. I respond as the attorney for the owners of 284 of the Crows Nest Harbour lots, whom I’ll call “these CNH owners” (identified below).

Comment: CNH lot owners will just sever their development rights under the TDR Ordinance and then just clear-cut Crows Nest Harbour.

Response: These CNH owners have already suggested—months ago, in public before the Planning Commission—a private agreement to contribute their lots to a public entity if they can ultimately obtain and use their TDR development rights elsewhere. A private agreement is the most flexible method to address unique CNH issues. Such an agreement would logically include a kind of standstill on physical changes to their lots—such as a standstill on timbering—for a defined period while TDRs are pursued and, if TDRs are obtained, continue thereafter until contribution of their lots to a public entity. Please refer to the statement by these CNH owners that was included at the end of the staff report for the Planning Commission public hearing: plancomm

Comment: The TDR Ordinance could potentially cost Stafford County taxpayers up to $59 million in lost proffers.

Response: Currently, 346 single-family dwellings may be built by-right in Crows Nest Harbour, which is a platted, approved subdivision. No proffers can be required. Those 346 dwelling units will either be built without proffers in Crows Nest Harbour or they will be built without proffers in a receiving area, targeted for development, defined by a TDR Ordinance. There are no “lost” proffers. A TDR advantage is that new units would be spread over different zoning districts, including B–3, and may be converted into commercial or mixed uses. According to the county staff, public notice would be provided when either a preliminary subdivision plan or a final site plan is submitted to the county for approval. TDR units, as with other units, may be subject to transportation impact fees, utility pro-rata fees, and utility connection fees in accordance with general criteria.

Apparent Assumption: Crows Nest Harbour lot owners don’t have any real development rights.

Response: That is not correct and that is not what the Board of Supervisors says. The Board is legally committed to the construction of roads in Crows Nest Harbour and holds funds in trust for that purpose, which the board obtained in litigation. In that litigation, the Stafford County Board of Supervisors represented to the Virginia Supreme Court that the board pursued those funds as a trustee. This litigation culminated in a court order that was expressly authorized by the Board of Supervisors, signed by a Circuit Court judge, and recorded in the land records of Stafford County, at Book 67, Page 4. This court order sets out guidelines for the completion of CNH subdivision road improvements.

These CNH lot owners believe that TDRs can be a viable alternative for Crows Nest Harbour development rights. Happily, that alternative could coincide with the interests of others. But time is growing short.

Mark G. Jenkins is counsel for 7K Investments LLC, JCM East LLC, Heron Harbor LLC, and Five Cedars LLC.