Saturday, November 13, 2010

New questions raised about O'Connell proposal

One thing that has disappointed many of us in the Williamsburg-East Falls Church neighborhood is the hurried way that Bishop O’Connell has handled its proposal without input from its neighbors, and the way O’Connell has characterized it as “field lighting on existing fields” for “high school uses.”

That is not an accurate description.

The plan actually calls for a major reconstruction of the fields and a much larger football stadium -- far more than just “field lighting.” Also, the fields are not just to be used for “high school uses” because there may be extensive use by collegiate teams from Marymount University.

John Seymour has just written a very thoughtful letter to county officials that explains the problems with the application and how the county apparently failed to follow Virginia law in notifying the neighborhood. He also highlights a number of unanswered questions about the proposal, and asks the county to defer hearing the application until those issues are resolved. The letter is summarized here and the full text is posted below.

The highlights:

  • The county and O'Connell may not have complied with requirements for giving sufficient notice of the project to property owners and to neighboring communities.
  • In characterizing the project as merely the installation of "field lighting on their existing fields" for use by "high school students," O'Connell may not have included in its application an accurate  "descriptive summary” of the project.
  • Numerous unresolved questions remain relating to parking, traffic, light pollution, and noise arising from the night-time sports events.  No Board hearing should be scheduled until those issues have been resolved.

John’s letter:

November 12, 2010

                                                                                               John F. Seymour
                                                                                               6535 North 27th Street
                                                                                               Arlington, Virginia 22213

Jay Fisette
Arlington County Board
2100 Clarendon Boulevard, Suite 300
Arlington, Virginia 22201

           Re:             Special Use Application U-1159-55-1 and U-2110-77-2
                       (Bishop Denis O’Connell High School)

Dear Mr. Fisette:

           I am writing to express my continuing concern about Bishop Denis O’Connell High School’s (O’Connell) pending application for a special use permit to re-orient and light its sports fields for evening sporting events.  In my initial letter dated September 24, 2010, I expressed concern about the adequacy of the notice provided by O’Connell to neighborhood residents.  I stated that, although I lived only a few hundred feet from O’Connell, I had no notice of the permit application until mid-September when a neighbor dropped off a copy of a letter from the Arlington County Department of Community Planning, Housing and Development.  That letter, dated, September 8, 2010, advised him of a hearing before the County Board scheduled for September 28, 2010.  (The hearing is currently scheduled for December 11th).

           After reviewing Arlington law applicable to notice requirements for special use permits, I am even more concerned that O’Connell’s letter and associated application fail to provide notice to affected persons such that they are afforded an opportunity to oppose the measure if they desire.  The notice provisions are “mandatory conditions precedent to the exercise by the governing body of zoning powers.”  Davis v. Stafford County Board of Supervisors, 20 Va. Cir. 122, 124 (1990).  Absent compliance with the statutory notice requirements, the Board cannot act on a special use permit.  Because of deficiencies in the notice requirement, as well as the many unresolved substantive issues relating to the project’s impact on the neighborhood, the County Board should continue to defer the hearing date until O’Connell’s application complies with applicable law.

           Non-Compliance with Notice Requirements:   Virginia law provides, in pertinent part, that proposed changes in ordinances, plans and uses must be published in a newspaper having general circulation in the area, and that “written notice” be provided at least 5 days before the hearing to owners of all abutting property and owners of property immediately across the street from the property affected.  Va. Code Ann. Sections 15.2-2204, 15.2-2309(6).  In addition, where a proposed application for special exception for a change in use involves “any property within one-half mile of a boundary of an adjoining locality of the Commonwealth, then in addition to the advertising and written notification as above required, written notice shall also be given by the local commission, or its representative, at least 10 days before the hearing, to the chief administrative officer, or his designee, of such adjoining locality.”  Va. Code Ann. Section 15.2-2204(C).  

           The applicable Arlington County zoning ordinance underscores these requirements by stating that “all required advertising will be done in accordance with applicable law.”  Arlington County Zoning Ordinance section 36.I.1.  Arlington County also requires that notice of proposed use permits “shall be given by posting (1) placard on the property for which said application has been filed and posting the surrounding area with no less than four (4) placards showing the designation of the property together with the time and place of the hearing.”  Arlington County Zoning Ordinance section 36.I.2.  With respect to the contents of any notice or advertisement, state law requires that “every such advertisement shall contain a descriptive summary of the proposed action.”  Va. Code Ann. Section 15.2-2204(A).   

           I do not believe that the Department or O’Connell have complied to date with these requirements.

           Although abutting property owners may have received written notice of the application, it is unclear to me whether the Department has provided the adequate notice through advertisement in local papers,[1] proper placarding on the property and in the surrounding area, and providing notice to the City of Falls Church – a neighboring locality located within one-half mile of the O’Connell boundary.  In particular, I have not seen advertisements for the proposed use in local papers, and – although I live very near O’Connell – I did not see placards in the neighborhood.  It is also unclear to me whether the City of Falls Church – whose residents will also be affected by the proposal – has received notice of the proposal.  Absent confirmation that the application complies with all of these requirements, the hearing must be postponed until adequate notice is provided.

           Even if O’Connell and the Department have complied with the procedures for notice, however, the notices themselves fail to comply with substantive requirements.  As noted above, the Virginia Code requires that notices “contain a descriptive summary of the proposed action.”  Virginia courts have held that, “[t]hough notice need not be exact or precise and some disparity between the notice and the legislative act is permissible, nonetheless notice in a zoning matter requires ‘that parties in interest and citizens . . . be apprised of the proposed changes to be acted on so they can be present to state their views.’”   Davis v. Stafford Board of Supervisors, supra at 122;  Ciaffone v. Community Shopping Corp., 77 S.E.2d 817, 833 (Va. 1953).  More recently, in construing the phrase “descriptive summary” for purpose of the notice requirement, the Virginia Supreme Court concluded that a descriptive summary is “a statement that covers all the main points concisely, but without detailed explanation, in a manner that serves to describe an object for the knowledge and understanding of others.”  Glazebrook v. Board of Supervisors of Spotsylvania County, 587 S.E.2d 589, 591 (Va. 2003).    The Court emphasized that the intent of the statute was to “generate informed public participation by providing citizens with information about the content of the [proposal] and the forum for debate concerning [the proposal].”  Id.[2]             

           Applying these standards to the notices at issue shows that they are plainly deficient.   The written notice provided by the Department states only that Bishop O’Connell is seeking a permit for the “installation of field lights on existing fields.”[3]  The notice refers the reader to the application at the Arlington County Zoning Office.  The application itself, which consists entirely of a form application, a two-paragraph narrative, and a few design schematics, also notes only that O’Connell “requests the installation of field lighting on existing fields.”[4]  Neither notice makes any reference to the very significant re-engineering and re-construction of the two ball fields, the expansion of the stadium with enlarged bleachers, the installation of powerful public address systems, the removal of a large number of parking spaces, or a host of other issues that bear significantly on the proposal’s implications for the character of the neighborhood, and the numerous adverse effects arising from the proposal.

           The notices are not only deficient, but affirmatively misleading.  O’Connell is not installing field lights on “existing fields” but on completely reconstructed and reoriented fields with new supporting infrastructure.  Perhaps most important, the notices state that O’Connell is installing the field lights solely to benefit high school athletic events.  Thus, for example, O’Connell’s application states that it is seeking a special use permit “for the purpose of operating/conducting high school uses.”  (Exhibit 2, Emphasis added).  More recently, O’Connell repeated this representation when it said, in a recent letter to alumni, that it was seeking a permit to light its fields to enhance the high school sports experience for its students.  O’Connell recently has acknowledged in discussions with certain members of the affected Civic Associations, however, that it is “partnering” with Marymount University and the County of Arlington for shared use of the new fields.  Many neighborhood residents are understandably confused about the scope of the project, the nature and extent of uses in the evenings, among other critical aspects of the proposal.  By any measure, the notices – by referencing only its existing fields and high school uses – do not constitute a “descriptive summary” of the project.  Most important, they will not generate – nor were they intended to generate, in my view – informed debate on the proposal and its implications for the neighborhood.

           Many Critical Questions Remain Unanswered.  The hearing also should be postponed for reasons unrelated to the deficient notice.  As I understand from recent discussions between O’Connell and members of the affected Civic Associations, the design work on the proposal is still undeveloped.  At this week’s meeting with several neighbors, O’Connell represented that it was still modifying its lighting design.  Among other things, O’Connell is considering requesting from the County a variance from already minimal set-back requirements to locate one 70-90’ high light pole within the 10 foot right-of-way near the intersection of Trinidad and North 26th street.  Thus, O’Connell’s proposal could lead to even more visual clutter than was provided in its original design, and an even greater intrusion into the residential neighborhood.  O’Connell is considering this change because alternative designs cause significant light trespass on to neighboring properties – at levels well above those recommended by the Illuminating Engineering Society of North America and other standard-setting groups.  It became clear that O’Connell is attempting to shoehorn a sports complex into a very small acreage and that O’Connell’s tinkering with alternative designs and lighting scenarios is likely to continue into the foreseeable future.

           Other significant issues are also pending and will require careful attention by the Planning Department and the Board.  For example, O’Connell’s performance specifications for its fields include NCAA-level lighting – standards for illuminance well above those established for high school sports.  The lighting proposal is not only inconsistent with the notice provided to residents (which, as noted above, clearly signaled a limitation for high school use), but is intended to attract an entirely new user population to our neighborhood – adult leagues and college age students.  The Department and the Board should consider whether to approve a permit that seeks not, as O’Connell represents, to improve sports facilities for its students, but to serve as an inducement for partnerships with other public and private entities.

           A host of other technical and engineering issues remain unresolved at this time, including O’Connell’s ability to accommodate on-site the potentially hundreds of additional automobiles during night-time events,[5] O’Connell’s ability to provide traffic safety, compliance with ordinance requirements relating to crowd and noise control, among others,[6] and its ability to mitigate light pollution. A deferral will permit the Department and O’Connell to provide adequate notice to the affected neighborhood and additional study and review of the many adverse effects arising from the proposal.  Careful and deliberate Department and Board review of the application will also, I believe, lead to the conclusion that the proposal does not satisfy the conditions for granting a special use permit.
Please feel free to call me at (703) 534-9132 if you have any questions about the matters raised herein.  Thank you very much.

                                               John F. Seymour

Ccs:              Marco Rivero

[1]             Even if a notice was published in a newspaper having general circulation, it is likely that such notice has expired.  Virginia law requires that the public hearing be held no more than 21 days after the second publication.  Va. Code Ann. Sections 15.2-2204; 15.2-2309(6).
[2]             As noted by one commentator in summarizing the notice requirements typically applicable to zoning matters, “[s]tatutes requiring notice . . . are generally construed as requiring a notice, the contents of which reasonably apprise those interested that the contemplated action is pending.  The courts approach the notice from the point of view of the layman and hold that while it need not be complete and perfect in every respect, it must be such as will afford him an opportunity to oppose the measure if he desires.”  832 Am. Jur. 2d section 53, Zoning and Planning, at 473.

[3]             A copy of this letter is attached as Exhibit 1.

[4]             A copy of the relevant page from the application is attached as Exhibit 2.
[5]             The Arlington County Zoning Ordinance requires that, “[f]or the purposes of reducing and avoiding congestion of streets and providing a more suitable living and working environment, it is hereby declared to be the policy of the County that: For every land use hereafter established, there shall be provided sufficient space for access by, and for the off-street standing and parking of, all motor vehicles that may be expected to come to the establishment at any time under normal conditions for any person. . .”.  Section 33.  O’Connell’s proposal will attract many more guests to its new complex and O’Connell has not provided data to suggest that it can accommodate reasonably expected crowds.

[6]             Arlington County Code section 15-7(d) provides, for example, that it shall be unlawful for any person to operate a “sound amplifier or similar device which produces, reproduces, or amplifies sound in a manner such as to create a noise disturbance within any nearby dwelling unit or across a real property boundary.”  It is unclear to many residents how O’Connell’s proposed public address system can be operated in compliance with Code requirements.