County of Fairfax, Virginia

MEMORANDUM
RECEIVED
Department of Planning & Zoning

DATE:

April 7,2015

TO:

John F. Ribble, III, Chairman

Members, Board of Zoning Appeals

FROM:

Leslie B. Johnson, Zoning Administrator

Cathy S. Belgin, Senior Assistant to the Zoning Administrator

SUBJECT:

Further Information and Rebuttal

REFERENCE:

Appeal A 2012-HM-020, RN Golf Management, LLC

11875 Sunrise Valley Drive and 2018 Soapstone Drive
Reston Sect. 42 Block 4A, Sect. 52 Block 4, and Sect. 44 Block 8
Tax Map: 17-4 ((11)) 4A, 26-2 ((5)) 4, 26-2 ((2)) 8
Zoning District: PRC

APR 7 2015
SPECIAL PERMIT &
VARIANCE BRANCH

(s&

On January 21, 2015, the Board of Zoning Appeals (BZA) held a public hearing for appeal
application A 2012-HM-020, which is an appeal of a determination that redevelopment of
property in the Planned Residential Community ("PRC") District from a golf course to
residential uses would require an amendment to the Reston Master Plan, which is a part of the
Fairfax County Comprehensive Plan, and Development Plan Amendment approval from the
Board of Supervisors (Board). The BZA decision was deferred until April 15, 2015, with
submission deadlines given of April 1, 2015, to provide the requested follow up information,
and April 7, 2015, to respond to the follow up information submitted April 1, 2015. Staffs
additional information and rebuttal was provided in a follow up submission to the BZA dated
April 1, 2015. This Memorandum addresses the additional issues raised in the appellant's April
1, 2015, submission to the BZA and has been prepared with the assistance of the County
Attorney's Office.
A copy of the previously provided staff report is available here for your reference:
http://www.fairfaxcountv.gov/dpz/bza/appeals/appealstaffreports/a2012hm020.pdf.

There is no Legislatively Approved Density Assigned to the Golf Course Property

for the Appellant to Implement

Distilled to its essence, the applicant presents the following argument construct: (1) the
development plan presented by County staff is not stamped "approved," even though the stamp
did not exist until the mid-1980s; (2) numerous and consistent development plans produced by
Department of Planning and Zoning

Excellence * Innovation * Stewardship

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Zoning Administration Division

12055 Government Center Parkway, Suite 807
Fairfax, Virginia 22035-5505
Phone 703-324-1374 FAX 703-803-6372
www.fairfaxcounty.gov/dpz/

&

DEPARTMENT OF

PLANNING
&ZONING

Mr. John F. Ribble, III, Chairman

Members, Board of Zoning Appeals
April 7, 2015
Page 2
the County archivist must all be in error because they only reflect the approval of a golf
course/open space on the subject property; (3) the applicant is unable to produce an approved
development plan for its property that reflects any designation other than a golf course/open
space; (4) therefore, according to the applicant, no development plan exists; and (5) therefore,
again according to the applicant, the permissible use and density of the golf course property
could be determined by the applicant's predecessor-in-title simply by having its engineer insert
a note on a record plat, which is not subject to the legislative review of the Board of
Supervisors. This erroneous construct fails against the weight of the Zoning Administrator's
analysis, which meticulously tracks the original zoning approval documents, applies the
relevant Zoning Ordinance and Comprehensive Plan provisions, is based upon development
plan designations approved by the Board, and complies with relevant case law.
Further, the appellant has never identified legislative approval of a specific density or unit count
for residential development - a requirement of the Zoning Ordinance. This shortcoming is fatal
to its contention that the golf course could be so developed without a Comprehensive Plan and
development plan amendment. As detailed below, the appellant's arguments find no support in
law or fact.
The appellant asserts two starkly contradictory arguments: 1) that in the PRC District, an
applicant need only designate one of the five PRC sub-categories and then any permitted uses in
that sub-category may be established by-right; and 2) that the development plans relied upon by
the Zoning Administrator cannot be the approved development plans because the purported "asbuilt" development does not conform precisely to that shown on the development plans.1 If the
subject property was, as the appellant asserts, designated Residential and a golf course was one
of many permitted uses in the Residential sub-category, then, under the appellant's theory, it
should not matter whether the golf course was developed with townhomes, garden apartments,
or tennis courts, as long as those are still permitted uses in the Residential sub-category. This
theory is not only logically inconsistent; it also crumbles under the express provisions of the
1971 Zoning Ordinance - the provisions that must be applied to analyze the development plans
approved in that year.2
Under the "Purposes and Intent" provisions of the then-RPC District, the flexibility afforded to
development was intended to "provide an opportunity and incentive for the developer to strive
for excellence in physical, social and economic planning." Zoning Ordinance 30-2.2.2(A).
To that end, the developer was to demonstrate "in all of his planning, design and development"
the achievement of specific objectives, such as "an orderly and creative arrangement of all land
1

As set forth below, the GIS data upon which the appellant relies is subject to numerous
disclaimers and is unreliable for the purpose used. Further, any actual inconsistencies could be
attributable to the practice of shifting uses around prior to the Supreme Court's decision in
Krisnathevin v. Bd. of Zoning Appeals of Fairfax County, 243 Va. 251, 414 S.E.2d 595 (1992);
see Zon. Adm. April 1, 2015, submission atl2-13.
2 The appellant relies almost entirely upon the current Zoning Ordinance. Those provisions do
not apply retroactively to analyze the development plans approved in 1971.

Mr. John F. Ribble, III, Chairman

Members, Board of Zoning Appeals
April 7, 2015
Page 3
uses with respect to each other" including "residential.. .parks, playgrounds, recreational areas,
parking areas and other open space." 30-2.2.2(A)(6).
To further demonstrate compliance with these objectives, development plans were required to
show the location and types of land uses, as well as "the proposed densities of population in
residential areas" and the location and nature of recreational facilities." 30-2.2.2(B)(2). The
Board and the Planning Commission considered information, including "the approximate
number and type of dwelling units," as part of the development plan. Id. (emphasis added.)
This requirement ensured that the overall population density would not exceed the limitation
established by Zoning Ordinance 30-2.2.2, Column 3 (emphasis added), which provided that
[tjhree residential density areas shall be permitted in an RPC zone
in the locations shown on the development plan. Such density
areas shall be designated low, medium and high.
If permitted uses could be "implemented" at the whim of a developer within any area designated
"Residential," then the PRC District would cease to be a planned district and the County would
simply have to yield to the developer's determination of the "appropriate" density level in a
given area. Under this erroneous construct, all the developer would have to do to usurp the
legislative role and establish its desired density is file a record plat with a note.3
For that reason, the Board specified that permitted uses in any residential district could be
established "only in locations as shown on the approved development plan subject to the
limitations as noted," with the noted limitations including the requirement for density
designations and an approximate number and type of units. See Zoning Ordinance 302.2.2(B)(2) and Column 1. Following approval by the Board of the development plan, no
significant modification could be made unless revisions in the plan were "submitted for
approval to the Board of Supervisors with recommendation by the Planning Commission in the
same manner as the original application insofar as public hearings [were] concerned. Zoning
Ordinance 30-2.2.2(B)(2).
The Board approved the Reston Master Plan and three development plans in 1971 as showing
the golf course for use as "Golf Course, Permanent Open Space." The Board has never
approved an amended development plan for the golf course and has never amended the Reston
Master Plan to show any other use of the golf course property. Ms. Artman's letter, which the
appellant mischaracterizes and attempts to equate to a legislative approval of residential uses,
does not alter the Board's legislative approval of the development plans. See Zon. Adm. Subm.
at 13-14; see also Ex. 21 to Rescue Reston's 4/1/15 Submission.

Per the Zoning Administrator's April 1st memorandum, the note on the subdivision plats does
not allow for subdivision or modification upon submission of a mere amended plat - it requires
legislative approval of an amended development plan.

Mr. John F. Ribble, III, Chairman

Members, Board of Zoning Appeals
April 7, 2015
Page 4
II.

The Approved Development Plans Designate the Subject Property as a Golf

Course, Permanent Open Space

The approved development plans do not show the property surrounding the golf course simply
as designated "Residential" and allow for a free-for-all of residential development; instead, the
designations on the approved plans include specific densities, as well as types and units of
residential units, as required by Zoning Ordinance 30-2.2.2. Compared with those specific
designations of density and unit numbers, the same development plans show the subject
property as only "Golf Course, Permanent Open Space." There are no other notations or
designations for the golf course parcels,4 and they were not assigned any density or residential
designation. Thus, residential uses are not a permitted or "by right" use of the golf course.
Zoning Ordinance 30-2.2.2, Column 1(6) (declaring that "[ujses in an RPC District shall be
permissible only in those areas as designed on the development plan").
The Open Space designation must not be ignored in this analysis. According to the appellant,
the five "sub-category designations" act as an "arrow to direct a zoning applicant to the list of
permitted or permissible uses available to a property..." The Zoning Administrator does not
dispute that certain designations on a development plan allow for "by right" development of a
subset of permitted uses, subject to any noted restrictions or, now, proffers and subject to
conformance with all PRC plan standards. The approved development plans at issue in this
appeal, however, specifically designated the property only as "Golf Course, Permanent Open
Space" - that designation does not confer the right to develop a subset of permitted uses, other
than other open space or recreational uses. In fact, because the then-applicant was not seeking
approval of any other "permitted" uses, there was no reason to "point an arrow" to other such
uses by designating the golf course as any of the sub-categories. Open space was a stand-alone,
defined use that, when not intended to be developed with other uses, did not require a separate
category.5 See Zoning Ordinance 30-2.2.2, Column 9; Zon. Adm. Sub. at 8. Moreover, even
if the golf course could be construed as having been designated Residential, which it cannot, the
appellant's argument still falls short: residential density and unit counts had to be shown
specifically on a development plan to be "implemented" by right.
If the then-applicant went to the trouble of showing a golf course on the property (possibly to
avoid the need for a separate approval), surely it also would have identified the parcels with a
residential designation and established a density therefor if that had been the intent. According
to the development plans and the contemporaneous staff reports, meeting minutes and
advertisements, it was never the intent of the then-applicant or the Board to designate the golf
course property for residential uses. See Zon. Adm. Apr. 1, 2015, submission at 2-7.

4 The

appellant refers to a note in the staff report for RZ C-135, which purports to identify the
designation of the property on the Reston Plan at that time. (App. Subm. at 7). The staff report
reference is incomplete because the then-current Reston Plan showed the golf course.
5 The 1971 definition of "Open Space" did not require the space to be "available for entry and
use by residents or occupants of the development." (See Zon. Adm. Apr. 1, 2015, Subm. at 8.)

Mr. John F. Ribble, III, Chairman

Members, Board of Zoning Appeals
April 7, 2015
Page 5
Limiting an owner/developer to uses that are consistent with designations on an approved
development plan conforms to the PRC regulations in the Zoning Ordinance; it does not amount
to an unlawful proffer. (App. Subm. at 6.) If the appellant is not satisfied with the designations
on the development plans, it can ask the Board to change those designations on an amended
development plan. The applicant misstates the Zoning Administrator's position, She has not
declared that the owner is forever bound to use the property as a golf course, nor does she seek
to transform the golf course property into an amenity for public benefit. Rather, she has
consistently stated only that if the application property is to be put to any use other than a golf
course, that redevelopment must be the subject of a comprehensive plan and development plan
amendment applications.
III.

GIS Data is Intended for General Information Only

On page 2 of the "Appellant's Supplemental Statement" the appellant references Attachment B

as "compellingly demonstrate[ing] the Alleged Development Plans are not consistent with what
actually has been constructed on these properties and no amendments to the "Alleged
Development Plans approving such inconsistencies can be found i.e., the development plans
actually approved cannot be found."
"Attachment B" is an 11 sheet graphic which purports to overlay the approved development
plans on "existing conditions (Fairfax County G.I.S.)." The problem with this approach is
that "Fairfax County G.I.S. does not reflect existing conditions and in fact, the agency
responsible for the G.I.S. data clearly states otherwise.
The Fairfax County G.I.S. open data website contains the following disclaimer:
The information contained in these datasets is NOT to be
construed or used as a "legal description". These are not survey
products. Any determination of topography or contours, or any
depiction of physical improvements, property lines or boundaries
is for general information only and shall not be used for the
design, modification, or construction of improvements to real
property or for flood plain determination.
While Fairfax County strives to provide the best data possible, it
does not provide any guaranty of accuracy or completeness
regarding map information. Any errors or omissions should be
reported to the Fairfax County Geographic Information Systems
and Mapping Services Branch of the Department of Information
Technology.
[emphasis added].
Nowhere in the Appellant's statement is there an acknowledgement of these disclaimers; in fact,
as noted above, the information is presented as "Alleged Development Plans are not consistent

Mr. John F. Ribble, III, Chairman

Members, Board of Zoning Appeals
April 7, 2015
Page 6
with what actually has been constructed on these properties. The data used to create "Exhibit
B" is unreliable for the purpose used and therefore does not provide an accurate depiction of asbuilt conditions of the property to compare with the Approved Development Plans. Staff
therefore does not believe the BZA should consider Attachment B in their decision-making
process for this appeal.
IV.

Conclusion

For all of the reasons stated, in addition to the information submitted on April 1, 2015, staff
respectfully recommends that the BZA uphold the Zoning Administrator's determination of
June 20, 2012, and deny the appeal.

cc:

Sharon Bulova, Chairman, Board of Supervisors

Catherine M. Hudgins, Supervisor, Hunter Mill District
Fred Selden, Director, Department of Planning and Zoning
Elizabeth D. Teare, Deputy County Attorney
Laura S. Gori, Assistant County Attorney
Mavis E. Stanfield, Deputy Zoning Administrator for Appeals
Amy Muir, Appeals Coordinator
Francis A. McDermott, Attorney and Agent for the Appellant, Hunton & Williams LLP,
1751 Pinnacle Drive, Suite 1700, McLean, Virginia 22102
RN Golf Management LLC, 8300 Boone Boulevard, Suite 350, Vienna, Virginia 22182
(property owner)