Op-Ed: Oaks III Rezoning Bad For the County

On Tuesday, Jan. 10, the Prince William Board of County Supervisors (BOCS) will vote on a rezoning application that is adamantly opposed by Occoquan Supervisor Mike May, the Town of Occoquan, and representatives from nearby communities.  

If approved, the rezoning would permit the construction of a 32,500 sq. ft. office building along Tanyard Hill Road, which we are convinced will significantly and negatively impact both storm water and traffic flows into and around Occoquan.   

But the implications of the rezoning’s approval extend beyond simply the Town of Occoquan and surrounding environs, for approval would also result in the BOCS rewarding the type of developer behavior the county should be actively discouraging, particularly when environmentally-challenging property is involved.

The storm water and traffic issues are relatively straightforward.  As proposed, we believe development of the parcel will increase storm water flows into the Ballywhack Creek watershed—the same already overburdened creek responsible for serious flooding of the town last year.  Furthermore, while access to the property will be available from Old Bridge Road, the only exit will be on Tanyard Hill Road.

The developer—Mr. Ken Thompson, who is a well known for having built portions of Lake Ridge in past decades and who now lives outside Prince William County—disputes that his project will increase storm water flows into the Ballywhack Creek watershed or generate significant additional traffic on Tanyard Hill Road.  Although the developer is by all accounts a pleasant individual, both his prior project record in the watershed and his entire approach to this rezoning undermine confidence in the reliability of his representations and assurances.

The developer markets his proposed rezoning by citing two features in particular.  First, he notes that he is setting aside a portion of the parcel in a conservation easement.  On closer inspection, however, this turns out to be mostly window dressing.  The conservation easement basically covers the portion of the property on which RPAs, slopes, and other features essentially preclude development.  Additionally, to be effective, such conservation easements should be administered by a third-party conservation trust.  As of this writing, and after months of opportunity to do so, the developer has still not secured a commitment from such a trust.  Second, the developer asserts that his project will actually improve storm water management in the area.  What only becomes clear with further analysis, however, is that this assertion is based in part on his offer to fix the problem created by inadequate storm water management on his adjoining commercial property.  In fact, poorly-planned prior projects by the developer are the catalyst for this entire rezoning effort.  

By his own admission the developer was originally only interested in purchasing a small piece of the Oaks III parcel to solve the problem of insufficient parking, again on his adjoining commercial property.  Unfortunately, the property owner has insisted on purchase of the entire parcel, which has in turn led the developer to attempt to cram an office building on to the one flat spot on the site in the hopes of subsidizing his purchase costs.

 
Additional apprehension about the reliability of the developer’s representations also arises from his approach to the existing burden on the Ballywhack Creek watershed.  The developer appears to recognize that inadequate storm water mitigation measures associated with his prior projects have rendered the creek and the town susceptible to flooding.  His solution, however, is to suggest that the town apply for state grants to improve or remediate the creek outside of town boundaries.  In other words, he has adopted just the position that makes people suspicious of some developers—increase developer profits by inadequate investment in the management of storm water and other impacts, and let the successor homeowner’s association or the taxpayer pick up the cost of later remediation.

This, unfortunately, is a problem of significant scope in various parts of the county, and of particular concern in and around Occoquan.  Well before the September flooding, town representatives and citizens sought the advice of county staff and other experts to address the regular threat to businesses and residents posed by the impact of even modest rains on two creeks flowing into town.  Somewhere in the neighborhood of a dozen site visits and/or meetings were held over a period of two years.  In one of those meetings Occoquan’s dilemma was dramatically illustrated.  After describing the significant expense—and perhaps physical impracticality—of fixing the streams so that they could accommodate the storm water flows, the diligent and no doubt genuinely concerned county staff member, swept his hand across an area of the map and indicated that the problem was that the town “had allowed all this construction upstream.”  What an affected resident promptly pointed out was that the staffer’s map did not show town boundaries, and that in fact all the area he had identified as causing the problem for the town was outside of Occoquan.

In addition to this developer’s record in the watershed, equally disturbing is his approach to community involvement in the planning process.  It is worth noting that the Town of Occoquan is not opposed to development of the parcel.  In fact, only months before learning of Oaks III, the town supported a project on the eastern side of Tanyard Hill Road proposed by a different developer who worked extensively with the town and others to mitigate storm water and traffic concerns.  Unfortunately, along among recent developers in the area, Mr. Thompson took a less community-minded approach, choosing to avoid contacting, much less consulting with, the Town before submitting his plans and going before the Planning Commission for approval.  Two planning commissioners have alleged that he and his representatives affirmatively misrepresented the position of the town, claiming at one point that the town approved of the project and in another that we were “a mile away” and therefore unconcerned about it.  At the time, in fact, we were unaware of the project’s existence.  For his part, the developer denies this ever occurred.

The developer’s most recent tactic has been to assert that his project supports local economic development.  What he is less apt to point out, however, is that not only did the developer on the other side of Tanyard Hill Road (mentioned above) conclude that a commercial building was not a financially attractive proposition in the area (leading many to believe the Mr. Thompson or a successor will soon be back asking for revisions to their plans), but that we believe the impact from his project will negatively affect more than 100 existing small businesses in the Town of Occoquan, as well as hinder the town’s larger economic development effort.

The developer likes to assert that the project was approved by the County Planning Commission, and this is referenced in cursory fashion in the County Staff report.  What is less obvious from the report, however, is that not only were two of the eight commissioners absent from the vote, but that the Commission repeatedly deadlocked 3-3 on various motions associated with the project.  Only after considerable effort did the Commission, in order to move something forward, agree to do so with certain conditions. One of these conditions—the securing of an administrator for the conservation easement—does not appear to have been met at the time of this writing (the staff report appears to erroneously indicate that it has).

The BOCS vote on the project has been deferred a number of times.  With the last deferral the town held out some hope that the developer was interested in negotiating a potential resolution to the storm water and traffic issues.  September flooding in town from Ballywhack Creek highlighted precisely one of the major problems about which we had expressed concern.  Additionally, at the urging of the developer, the town, with the support of Supervisor Mike May, packaged a proposal that would give the developer the land he needed for parking spaces, a state tax credit, a federal tax deduction, and a cash payment that together would total what we understood to be his purchase price—and that would put the remainder of the parcel under a conservation easement suitable for assignment as park land.  It was a win for everyone involved, and the developer requested a deferral until January in order, we were led to believe, to take advantage of a new tax year.

Unfortunately, it does not appear that the developer ever had any intention of negotiating such a proposal in good faith.  Despite making such an offer at the urging of the developer, the town had to repeatedly push for a response, eventually even increasing the size of the cash payment.  It was only under pressure the week before Christmas that the developer finally responded, rejecting the offer, citing poor past experience with state tax credits, and asserting that state tax credits had been used up “a year out”— a fact that he authorized me to disclose if faced with accusations of having acted in bad faith.

Unfortunately, a few telephone calls confirmed that not only was it almost certainly untrue that the tax credits had been used up a year out, but that over the several months leading up to the developer’s rejection of the town’s offer, credits for 2011 were still available.  This, of course, raises serious questions about whether or not the developer had ever intended to negotiate in good faith toward a resolution.  In retrospect, it seems clear that while the Town, Supervisor May, and others were investing time and money to seek a suitable resolution, the developer simply hoped to put some distance between the BOCS vote and the flooding Occoquan had experienced, as well as get beyond the November elections when supervisors might have been more susceptible to constituent pressure.

Finally, it is worth noting that this is not a “by-right” project, but a rezoning, which the BOCS has more than ample legal reason to deny.  Additionally, the current property owner, a Fairfax-based foundation, received the property as a donation in 2003.  They can sell and/or develop it responsibly at a substantial and reasonable profit.  Instead, however, disregarding the concerns of the surrounding community, they have essentially been gambling with the property, hoping that they would eventually have influence over a BOCS more amenable to rezoning and more intensive development of the parcel.

In short, approval of this rezoning request would not only adversely impact storm water and traffic in the Town of Occoquan and the surrounding area.  It would also reward a developer who, regardless of whatever valuable work he may have done decades ago in the construction of Lake Ridge, has in this instance sought to minimize public awareness of his project, repeatedly inadequately planned for storm water and traffic impacts in the watershed, and failed to negotiate in good faith a resolution to the project’s shortcomings.  

The choice is clear.  Former Occoquan supervisors, including Chairmen Stewart, have repeatedly assured Occoquan residents and prior Town Councils that this parcel was not suitable for this type of development and that they would oppose any effort to do so.  Nothing has changed that should alter that view, and we respectfully urge all supervisors to accept the views of the affected communities and the current Occoquan district supervisor, by voting against the rezoning application.

Respectfully,
Earnie Porta
Mayor, Town of Occoquan