By Thomas Harding

On November 7 a referendum will be held on the new zoning ordinance and map for Jefferson County. Most people haven’t read it; many haven’t even heard about it. The ordinance contains 278 pages, including 46 pages on permitted uses, 33 pages on environmental protection, 16 pages on landscaping, 20 pages on administrative processes, and 13 pages of definitions.

It took more than five years to write, and involved hundreds of people through public forums, committees, and written submissions.

Here is a guide to the ten biggest differences between the new and old ordinances.

1. End of the LESA system

By all accounts, the most frustrating part of the old ordinance is its subdivision process, called LESA (Land Evaluation and a Site Assessment. It utilizes a point system to evaluate each site based on soil quality, current use, and locational factors like surrounding land uses and zoning. In practice, it allowed urban-density subdivisions to be built in the most rural parts of the county as long as certain criteria were met—including availability of public water and sewer.

The problem with this approach is that developers with resources at their disposal can put a new subdivision anywhere they like—away from town centers, roads, and schools—typically through conditional use permits. Because the ordinance was so loosely written, many subdivisions were approved that were out of synch with the county’s comprehensive plan. A patchwork of randomly placed communities has been built with little regard to the impact on the rest of the county. Many planners will tell you this is a recipe for disaster.

The new zoning ordinance is more prescriptive (some would say too prescriptive.) Each zone includes a list of permitted uses, allowing no exceptions. For example, you can build a multi-family apartment building in a townscape zone but not in an agricultural zone. There is no opportunity for a use that isn’t listed without rezoning the property, a process that would require the approval of the planning commission and county commission—not an easy task.

2. New zoning map

Under the old zoning map, the county is divided into five zones: village, residential growth, industrial, light industrial and rural. The vast majority of the county was colored white, and given a generic “rural” zone with no distinction made between developed or not developed areas (for example, villages), environmentally unique regions, or the traditional use of the land.

The new zoning map is very different. To create it, a detailed historical, geological, and environmental survey of the county was undertaken. New zones were created to protect environmentally sensitive areas like the watersheds along the Potomac and Shenandoah rivers and sinkhole regions in the southern part of the county. As a result, 12 zones were created. These include agricultural, countrywide, estate, village, townscape, residential, commercial, business park, and three new conservation areas, including the mountain district along the Shenandoah River.

In line with the comprehensive plan, development would now take place near urban centers and would be limited within urban growth boundaries. The purposes are to preserve the rural and agricultural nature of the county and to focus infrastructure around the municipal centers.

3. Permitted uses

A frequent criticism of the old ordinance is that people cannot operate businesses in the rural areas by right. This has practical, often harmful consequences. Child care centers have been shut down because they couldn’t get approval. People are unable to turn their homes into B&Bs because they’re located in a rural zone. Farmers are not able to sell produce from their farms or have non-farm occupations like crafts or pottery studios. Even working from home requires special approval.

Over the past 20 years, it’s become more common for people everywhere to work from home. The new ordinance embraces this reality, and is generous towards home occupations. For the first time, under the new ordinance, B&Bs with up to eight rooms and country inns with up to 60 rooms will be permitted in non-urban areas. Child care, residential care, and farm markets will also be allowed in rural areas.

4. Density

Over the past few years a battle has been waged between so-called growthers and anti-growthers. The former argued that the county needs jobs and development, and the latter argued that the county’s historical and environmental values should be preserved no matter the impact on the economy.

The old ordinance is actually far more restrictive on development density than the new ordinance. The current ordinance (amended in 2005) allows a maximum of one home to be built for every fifteen acres in the rural zone. Therefore the new ordinance is more generous. Through clustered development, it allows one home for every nine acres in the agricultural zone and one home every four acres in the countryside zone.

This generosity comes with a hitch. To get the maximum allowable homes per acre, a developer must set aside at least 15 percent of the homes as affordable “workforce housing.” On these units, the developer may charge the buyer only for the cost of building the house, not for the land and community improvements like roads and gutters. Developers may add those charges into the price of the other houses when developing in residential, townscape or village communities.

5. Environmental and historic protections

In the new ordinance, all subdivisions must go through an environmental review process. Developers would have to provide an inventory of the existing amenities on the site—for example, wetlands, forests, sinkholes, historic homes. This data is then plugged into a complicated formula—laid out fairly clearly in the ordinance—that generates the precise density allowed on the land.

Under the new ordinance, developers must also survey the historic nature of the property, and must seek approval from the Jefferson County Historic Landmarks Commission to remove them. Carrots and sticks have been included in the new ordinance. Greater density is allowed when historic landmarks are protected, but density is dramatically reduced (up to 20 percent) if historic homes are demolished without permission. This type of protection is not part of the old ordinance, and follows closely the intentions of the county comprehensive plan.

To protect the environment, the new ordinance includes three conservation districts, including, most controversially, the Mountain Conservation District. This section has caused concern among residents who live in mountain areas like Shannondale, Blue Ridge, and Mission Road. As a result, the ordinance offers major exceptions for this area. Some lots that are already platted can be developed even though they would not be permitted in other parts of the county.

6. Agriculture

The old ordinance offered little protections for agri-operators. The new ordinance has many changes favored by farmers. Every real estate transaction would now carry a disclosure informing new residents that if they buy homes near farms they can expect noise, dust, and vibrations from farming operations. Farmers will now be able to sell goods and run non-farm operations on their land—all disallowed under the old ordinance. Broad exceptions are built into the new ordinance to protect farmland.

7. Too meddlesome

A complaint about the new ordinance is that it gets into people’s business. The original draft was written by consultant Lane Kendig, whose approach was to “put everything in the ordinance and let people take out the bits they don’t like.” This upset a lot of people who might otherwise have supported the new ordinance.

The final version still has rules that some people will find intrusive. For example, the new ordinance prescribes what kind of material people can use in fences—no chain links. It limits the size of outdoor planters, defines the maximum height of farm buildings, and forbids field crops on historic sites that were historically maintained as lawns. It even says that yard sales cannot stay open beyond 6pm, and creates an “Odorous Panel” selected by the county commission to establish whether there is a “noticeable problem” emanating from a manufacturer.

However, many of the most annoying intrusions have been removed. Previous drafts of the ordinance disallowed work vehicles to be parked in people’s driveways, and forbade yard work to take place during certain times of the day. Such objectionable restrictions have been removed from the new ordinance.

8. Process

Another complaint about the old ordinance was the haphazard application process. It was never clear how long approvals would take or why an application was approved or denied.

Many people thought the process was arbitrary and capricious: those who could afford to hire experienced and expensive attorneys and land-use professionals could get their way, while those who could not, did not. One of the biggest complaints from developers was that the application process for the old ordinance seemed to drag on forever. Despite numerous efforts to streamline the process under different planning directors, it took at least 18 months to get a decision on a major subdivision.

The new ordinance is almost Teutonic in the description of the application procedure. The zoning administrator will have only 10 days to respond to a request for pre-application conference, 30 days to provide a review to a formal application, then 44 days to hold a public hearing. The entire process could take less than six months from start to finish. However, we have not seen how this new system works in practice, the reality made be different.

The new ordinance’s application process is far clearer than the old ordinance, but people have complained that the new ordinance itself is too complicated and too long for the average citizen to read. Others counter that this is a technical document meant for professionals: it should be written in clear English understandable by anyone wishing to develop their land, but also serve as a how-to manual for engineers and developers tackling the most ambitious of projects.

9. Loopholes

The new zoning ordinance includes the types of loopholes that come with lobbying by interest groups. The mountain community around Shannondale, for example, is protected from many provisions, and government-owned buildings are exempted from zoning. One loophole is particularly glaring. It grants “grandfathered” agricultural and industrial operations complete zoning immunity to expand operations beyond their current borders—even if the expansion moves them into a residential neighborhood. It’s on page 129, section 6.100

Here’s an example of how this could play out. Let’s say land around a mulch plant is zoned residential under the new ordinance, and neighborhoods spring up on surrounding land. If the mulch plant wants to expand onto adjacent land—even if the land is within the boundaries of residential community—they can. Technically, the plant could buy vacant lots in the community and expand its operations.

10. Parent-to-Child and Minor subdivisions

One big change would be the loss of two major loopholes in the old ordinance: the “minor” and “parent-to-child” subdivisions. In the old ordinance a minor subdivision allowed two lots to be split from a landholding every five years without going through the formal major subdivision process. Many landowners used this to develop large holdings into twenty plus lots without being subject to the major subdivision rules. While the new ordinance does allow minor subdivisions – which the planning department says will be more streamlined than the old system taking as little as 30 days to complete – they will only allow five lots to be created on each parcel.

Meanwhile, the parent-to-child subdivision allowed unlimited numbers of lots to be carved out for children with almost no planning oversight will be eliminated under the new ordinance.

Over time the parent-to-child subdivision process resulted in the creation by stealth of unplanned subdivisions without homeowners associations and suitable access roads.

As a sop to the rural community who complained that the loss of parent-to-child subdivision particular was unfair, the new ordinance does allow for farmers and other rural landowners to create one lot from small holdings less than eighteen acres.

Finally, in the old ordinance, the minimum lot size that could be subdivided in the rural zone was two acres. The new minimum lot size for subdividing would be 18 acres in the agricultural zone and five acres in the countryside zone.

Timeline

October 2, 2008: New zoning ordinance  and zoning map adopted.

November 3, 2008: New zoning ordinance and map goes into effect.

December 28, 2008: Petition calling for a zoning referendum submitted to county clerk.

January 9, 2009: Zoning petition is certified and new ordinance is stayed, old ordinance back in effect.

November 7 2009: Referendum on new zoning ordinance.

December 2009: Estimated new effective date if ordinance is approved.