What is Crow’s Nest Harbour?

Crow’s Nest Harbour

November, 2014
The Crow’s Nest area continues to be a hotbed of controversy, as owners of 260 of the 346 home sites on Crow’s Nest Harbour are planning a lawsuit. The intention is to force the county to allow homes to be built on about 1,000 acres in Crow’s Nest Harbour.

However, there is a partially finished Transfer of Development Rights ordinance (TDR) that may allow an amicable compromise between Stafford County and the Crow’s Nest Harbour landowners. Through their legal representatives, most of these owners have expressed an interest in a TDR program as a solution. “At the end of the day, we absolutely do not want a judge deciding whether or not to allow three hundred forty six homes and a thousand new residents in the heart of the Crow’s Nest,” says Paul Milde, Aquia District Supervisor.

The Stafford County Planning Commission is currently adding the finishing touches to a revised TDR ordinance.  They are expected to send their recommendation to the Stafford Board of Supervisors in January. Those finishing touches will determine precisely what areas in Brooke and Crow’s Nest Harbour will be eligible.

A Few Facts about TDR

TDR allows owners moving a development right (DR) to be allowed to give their land to the County. The owners are not required to do so, and the County cannot require it under state law, but the land will be limited to agriculture or silviculture uses and placed in a conservation easement perpetually.

The County’s goal is not complete ownership of the property; it is to stop residential and commercial development of the area, one that is not positioned to be supported by County services like school buses, deputies, fire rescue, adequate roads, water, sewer etc.

TDR uses no taxpayer money.  Rather, it is completely a shifting of DR between private parties.

TDR adds no new residential development to the County; it simply repositions existing, non-proffer paying development near infrastructure. It is for that reason that the General Assembly does not allow proffers to be collected on a DR that is developed.

CROWSNESTOWNERSMarch2013

Crow’s Nest Harbour Articles

  • Crow’s Nest Harbour landowners suing Stafford, Board of Supervisors

  • OWNERS OF PARCELS IN SUBDIVISION ADJACENT TO PRESERVE FILE AGAINST COUNTY, SUPERVISORS

    DEC 17, 2014

    Lot owners’ efforts to make their land ripe for development recently collided with Stafford Board of Supervisors’ efforts to discourage development near protected land.   Now the issue has ended up in court. Several lot owners in the now-defunct Crow’s Nest Harbour subdivision are suing Stafford and its Board of Supervisors. The lot owners who are plaintiffs own about 260 parcels in the 346-lot subdivision. The subdivision, which was approved in 1973, now sits adjacent to the Crows Nest Natural Area Preserve. Supervisor Paul Milde has said that it is the board’s goal to conserve the land adjacent to the preserve. The land is designated as park land in the county’s Comprehensive Plan. Supervisors declined to extend public utilities to the lots in early September and canceled a scheduled public hearing later that month. The public hearing had to do with the lot owners’ request to remove language in the subdivision plats that require their lots be served by public utilities. The subdivision is now more than two miles east of the county’s public utilities service area. In the lawsuit, the landowners are asking, among other things, that the court declare the board’s cancellation of the public hearing and refusal to change the plat’s language arbitrary and capricious, and also to determine that supervisors have a legal duty to hold a public hearing. Clark Leming, the attorney representing the lot owners, argued that supervisors have deprived the lots from being served by both private and public utilities. Part of Leming’s argument depends on the efforts of one of the landowners to have his property served by private utilities. That lot owner, who is suing the county along with the other lot owners, approached the county’s Board of Zoning Appeals for permission to put wells and septic systems on his land, but that request was denied because the plats require public water and sewer. The BZA’s decision was upheld by a Stafford County Circuit Court judge, who referenced the public water and sewer requirement in the subdivision plats. By canceling the public hearing, Leming said, supervisors violated state law that requires Stafford to hold a meeting where changing the language in the plats could be voted on. He also argued that attempting to change the language in the plats to pave the way for private utilities was the last available resort to the lot owners since other efforts to obtain private utilities weren’t successful. The plaintiffs have thus been denied the beneficial use of their lots, Leming said. Stafford’s legal representation countered by saying that the lot owners’ application to erase the language in the subdivision plats wasn’t complete, and couldn’t have even been approved if a public hearing was held. Supervisors also didn’t refuse to hold another public hearing, the county’s representation said, but simply didn’t respond to a letter sent to the county attorney requesting that another hearing be held. Supervisors were justified in canceling the public hearing given the fact that the same lot owners are pursuing another lawsuit claiming a right to public utilities because of the language in the subdivision plats, the county’s lawyer said. In addition, the landowners’ haven’t exhausted all possible avenues and haven’t been deprived of their property for several reasons, the county’s lawyers said. The lot owners could resubdivide their land or get all the lot owners’ approval to change the subdivision plats, which would still require approval by the county. Original plans for the development called for a 4,500-acre community that included golf courses, marinas, an airport, a convention center and schools. The development included multiple zoning districts allowing single-family homes, townhouses and the other amenities. But after a developer filed for bankruptcy in 1975, the county downzoned the property to A–2, rural residential, and dropped plans for public water and sewer service there. The county has until next year to deal with another legal issue stemming from plans for that previous development. The county is required to make infrastructure improvements to the subdivision by March 2015 to follow a 1995 court order. At the time, that order settled what should be done with more than $1 million in bonds that were issued by Safeco Insurance Co. to ensure completion of water, sewer and roads for the development. The funds ended up being placed in an escrow account now held by the county. The balance of that account is now more than $2 million with the interest it has accumulated. If the county doesn’t complete the infrastructure improvements by March 2015, the board must contract to complete as much of the work as possible within 12 months using those funds. http://m.fredericksburg.com/news/local/stafford/crow-s-nest-harbour-landowners-suing-stafford-board-of-supervisors/article_61952845-f380-5643-af77-95dc639851a1.html?mode=jqm  
  • Stafford supervisors cancel public hearing

  • Wednesday, September 17, 2014 12:00 am

    In a surprise vote, the Stafford Board of Supervisors removed a public hearing regarding development near the Crow’s Nest Natural Area Preserve from its Tuesday agenda.
     The vote came after a closed session during which supervisors again consulted with attorneys about the issue that may eventually end up in court.
    The public hearing had to do with subdivision plats requiring lots in the Crow’s Nest Harbour subdivision being served by public water and sewer. The subdivision was approved in the 1970s but never developed. It is now adjacent to the 2,872-acre Crow’s Nest Natural Area Preserve. Owners of a combined 260 lots in the 346-lot subdivision wanted supervisors to remove that public-utilities requirement after the public hearing. Supervisors Meg Bohmke and Paul Milde cast the two votes against taking the public hearing off the agenda. “I think we have talked about this for too long,” Milde said. He thought supervisors should reject the request to remove the public water and sewer requirement on Tuesday. Three other supervisors wouldn’t comment on why they removed the public hearing from the agenda. “We all have the same goal, no development,” Milde later said. He added that he and Bohmke agree about one way of reaching that goal, but other supervisors want to take a different approach. Milde wouldn’t elaborate because of legal issues. Clark Leming, the attorney representing some Crow’s Nest Harbour lot owners, has said that if supervisors decided to keep the public-utilities requirement for the plats, then it could become a problem legally. In materials submitted to the county, Leming wrote that the developers have been put in a no-win situation. Supervisors already rejected the developers’ request to extend public water and sewer lines to their lots, which are now more than 2 miles east of the public-utilities service area. The developers would have covered the approximately $1 million cost of the extension, but Milde has said that the county’s ultimate goal is to put the land under conservation. Another Crow’s Nest Harbour lot owner had previously approached the county’s Board of Zoning Appeals for permission to put wells and septic systems on his land, but that request was denied because the plats require public water and sewer. The BZA’s decision was upheld by a Stafford County Circuit Court judge, who referenced the public water and sewer requirement in the subdivision plats. The subdivision plats were recorded after the development was approved in 1973. Original plans for the development called for a 4,500-acre community that included golf courses, marinas, an airport, a convention center and schools. But after a developer filed for bankruptcy in 1975, the county down-zoned the property to A–2, rural residential, and dropped plans for public water and sewer service there. But the county is required to make infrastructure improvements to the subdivision by March 2015 to follow a 1995 court order. At the time, that order settled what should be done with more than $1 million in bonds that were issued by Safeco Insurance Co. to ensure completion of water, sewer and roads for the development. The funds ended up being placed in an escrow account now held by the county. The balance of that account is now more than $2 million with the interest it has accumulated. http://www.fredericksburg.com/news/local/stafford/stafford-supervisors-cancel-public-hearing/article_c4019ddc-7f37-11e4-b746-7775430cc92d.html
  • Lots near Crow’s Nest Natural Area Preserve remain divisive

  • Sunday, September 14, 2014 12:00 am

    Developers looking to build on lots next to the Crow’s Nest Natural Area Preserve are hoping the Stafford County Board of Supervisors will erase language they say restricts their options on the land.
     The board meets on Tuesday, and that meeting could determine whether the issue winds up in court.
    Attorney Clark Leming represents lot owners in Crow’s Nest Harbour, which is adjacent to the 2,872-acre state natural area preserve. Plats recorded in the 1970s require the subdivision to be served by public water and sewer. But the subdivision, which was approved in 1973, is now more than 2 miles east of the current public utilities service area. The Board of Supervisors doesn’t want the lines extended to the subdivision and voted down the idea on Sept. 2, even though the lot owners would have covered the approximately $1 million cost of the extension. “It’s designated as parkland in our Comprehensive Plan and it’s outside the urban services [public utility service] area,” Supervisor Paul Milde, whose district includes Crow’s Nest Harbour, said of why supervisors denied the extension. “It’s not in a designated growth area and it never will be. We still have a lot of work to do to reach our ultimate goal of putting the property under conservation.” Another Crow’s Nest Harbour lot owner had previously approached the county’s Board of Zoning Appeals for permission to put wells and septic systems on his land, but that request was denied because the plats require public water and sewer. Not long before the supervisors voted down the extension of public utilities, a Stafford County Circuit Court judge upheld the BZA decision denying private utilities to that lot owner’s land. The judge referenced the plats that require public water and sewer. With the supervisors’ decision, the stage is nearly set for Leming to argue to a judge that the county is tying the hands of some of the owners and potential developers. Leming says the supervisors’ decision means that Crow’s Nest Harbour lot owners have been denied both private and public utilities. Supervisors’ went into a closed session to seek legal counsel on the issue before they unanimously voted to affirm the Planning Commission’s decision to deny the extension of public utilities. Chairman Jack Cavalier didn’t want to comment on the issue because of its legal ramifications. “There needs to be a solution because right now the owners of those lots can’t do anything with them. And they are residential lots that permit the building of a single-family detached home, but they can’t even get a permit because of those issues involving water and sewer or well and septic,” Leming said. He added that the Sept. 2 decision by supervisors denying the extension of utilities wasn’t a surprise. “We don’t really think that the county would entertain extending water and sewer to Crow’s Nest Harbour, something that far away,” he said. “But those plats require those lots to be served by public water and sewer, so that’s the inherent contradiction and issue.” Before possibly heading to court, Leming said that the lot owners will first try to get supervisors’ approval on Tuesday to erase the language in the subdivision plats requiring the lots to be served by public water and sewer. “If the board decides not to vacate the plats, then the denial of the water and sewer would be a problem legally,” Leming said. The owners of three companies represented by Leming own a combined 260 parcels in the 346-lot subdivision that is adjacent to the preserve. Original plans for the development called for a 4,500-acre community that included golf courses, marinas, an airport, a convention center and schools. The development included multiple zoning districts allowing single-family homes, townhouses and the other amenities. But after a developer filed for bankruptcy in 1975, the county downzoned the property to A–2, rural residential, and dropped plans for public water and sewer service there. The county has until next year to deal with another legal issue stemming from plans for that previous development. The county is required to make infrastructure improvements to the subdivision by March 2015 to follow a 1995 court order. At the time, that order settled what should be done with more than $1 million in bonds that were issued by Safeco Insurance Co. to ensure completion of water, sewer and roads for the development. The funds ended up being placed in an escrow account now held by the county. The balance of that account is now more than $2 million with the interest it has accumulated. If the county doesn’t complete the infrastructure improvements by March 2015, the board must contract to complete as much of the work as possible within 12 months using those funds. Leming said that the $1 million cost of the extension would be about the amount that the county must spend to make the infrastructure improvements by March 2015. A transfer of development rights pilot program that was envisioned as a solution to preserving Crow’s Nest Harbour is still in the works. That program would, in theory, allow development to transfer from less developed areas to areas better suited for growth. In recent talks with those who own a majority of Crow’s Nest Harbour lots, Milde said, the lot owners have expressed interest in moving their development rights to other land they own in the county or other land near or in the public utility service area. http://www.fredericksburg.com/news/local/stafford/lots-near-crow-s-nest-natural-area-preserve-remain-divisive/article_568e1602-7f39-11e4-bb60-b3ba083921e6.html
  • TDRs: An essential tool in managing growth

  • Tuesday, October 15, 2013 12:00 am

    WHILE it may not be immediately obvious, signs of the economic recovery are becoming more apparent in Stafford County. New development is returning and is visible in many parts of the county. As those who experienced the rapid growth periods of the previous two decades, economic recovery invariably results in residential development. The number of new residential permits issued in Stafford County this year has already surpassed every year’s since 2005. In the last year alone, the number of permits issued for new residential units in Stafford has risen 55 percent. In 2013, we are on track to issue more than double the number of permits issued in 2011. While these increases are coming off some lows in recent history, the trend is clear: Demand for residential growth is returning—rapidly.
     Just saying “no” to new residential development is not a solution. Not only is such a policy legally prohibited in Virginia, it is woefully ineffective. The result of taking a hard-line stand prohibiting development is invariably failure, coupled with the expense of big legal bills. For local government, it is the ultimate “lose–lose” scenario.
    Much of the growth in rural areas is categorized as “by-right,” meaning county government can neither prevent it nor influence it. Spurred by the need to adopt policies that could effectively manage growth and preserve Stafford’s rural and environmentally sensitive areas, the Board of Supervisors adopted other methods that would focus development on those areas that could best support it. The county initiated trial programs to use tools like Transfers of Development Rights, which limit development in areas where it would be least desirable and place it in areas with the infrastructure necessary to support growth. Another of those tools, Purchases of Development Rights, has already saved 100 acres, with three more farms slated for preservation by next year. Now, as we are at the beginning of another period of growth, some of the same voices that opposed the PDR and other measures that were successfully used to preserve Crow’s Nest have returned to oppose TDRs. Their overall opposition to TDRs is based on the fact that these tools still allow for growth—just not in environmentally sensitive areas or in areas where the infrastructure doesn’t exist to support it. So, their solution to looming residential development is to oppose any policies that permit it. While saying “no” to residential development may satisfy their instincts, it is not a solution. Rather, it is an exercise in futility. By employing tools like TDRs, we can focus the growth in areas that can support it, and preserve the rural character of those parts of the county that now enjoy it. The result of employing TDRs in these circumstances brings multiple benefits. By focusing development in areas where the infrastructure to support it already exists, the growth in long-term expenses of providing residential services for county government—and, therefore, taxpayers—is dramatically reduced. But, there are also quality of life issues: A school bus ride for a child living in rural Stafford is now over an hour in many cases. The Planning Commission recently voted 5-to-2 to extend the TDR program. Now, its continuation moves to the Board of Supervisors. While it may be tempting to reject this tool because it allows some growth, doing so endangers the gains Stafford has achieved over the last eight years in preserving the natural beauty of our county. We can retain the natural beauty of Stafford County and ensure our picturesque areas remain untouched for generations to come. But, we must do so in a legal manner that respects individual property rights and doesn’t expect taxpayers to foot the bill. TDRs are an effective way to do just that. As we emerge from a recession and face the pressures of growth, we must not abandon this vital tool to managing growth. Paul V. Milde III currently represents Aquia District on the Stafford County Board of Supervisors. http://www.fredericksburg.com/opinion/columns/tdrs-an-essential-tool-in-managing-growth/article_36f7184c-7f3a-11e4-8cdf-934abcf33f91.html
  • 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 .stafford.va.us/2013/08282013/Items6&7.pdf. 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. http://www.fredericksburg.com/opinion/columns/crows-nest-harbour-tdrs-needed-progress/article_08cb00a8-7f3c-11e4-9087-93b0a6a5d45e.html