A small group of government officials, appointees, and their citizen cronies are using legal “devices” to inflate their personal land values and squeeze the rest of current and future county residents into a box.
Why would they want to do that? you might ask. Well, you need to understand how these central planners (many of them agriculturalists and/or rural landowners) think. These people honestly believe that their view shed and tranquility are more important than your liberty and private property rights. Because they enjoy looking outside their windows and seeing acres of beautiful rolling countryside, you are not allowed to develop your property beyond what and how they permit you to develop. Never mind that some of them sold parcels of land for millions of dollars to real estate developers that eventually ended up ruining their neighbors’ view shed and tranquility. Some land owners are simply created more equal than others.
The web is thick and tangled so get ready—we are cutting deep and getting technical as we tackle the knot of Planning & Development. We’re going to look at the central planners who are “playing SimCity” with Frederick County residents and businesses. Yes, folks, you are being herded and corralled like cattle.
The Quick ‘n Dirty On What Is Going On
A major component of the 2030 Plan is the TDR program. An important part of the TDR program is the granting of bonus density transfer rights to AFDs by the local government. The key players in the designing, approving, and/or implementing of the 2030 Plan, the TDR program, and the AFD program are long-time cronies, a suspicious number of whom directly benefit from these bonus density rights. They have the potential of raking in tons of cash for development rights that didn’t exist prior to April 2010. The government literally pulls these rights out of thin air and hands them to certain landowners on pieces of paper that can be sold for cash. Let’s hope real estate developers and investors don’t take the bait.
If you didn’t understand the previous paragraph, then you need to read the rest of this post.
And if you want names, click here.
The Plan
Let’s start with the 2030 Comprehensive Plan (or The Plan.) The County defines The Plan as “the guide for future growth of Frederick County.” According to the Board of Supervisors, The Plan reflects their vision statement:
Insuring the quality of life of all Frederick County citizens by preserving the past and planning for the future through sound fiscal management.
Keep in mind that any time county officials try to minimize the importance of The Plan by calling it “just a guide,” they are lying. In the Introduction of The Plan, it states:
The ultimate goal is to make The Plan implementable, and by extension, achieve the Board of Supervisors’ vision for the future of Frederick County.
And once the Board of Supervisors votes approval for it, you had better believe they are going to implement it.
So, how did the County come up with The Plan? Between April 2010 and December 2010, the Planning Commission guided the Comprehensive Plans and Programs Executive Committee (CPPC) in the drafting of The Plan with the assistance of “working groups.”
The CPPC includes the following individuals: George Kriz, Gary R. Oates, Stanley Crockett, June Wilmot, Roger Thomas, Christopher Mohn, Philip Lemieux, H. Paige Manuel, Marjorie H. Copenhaver, and Jim Golladay Jr. The working groups included: Bob Morris, Patrick Sowers, Whit Wagner, Diane Kerns (Kearns), John Marker, Patrick Hogan, Dudley Rinker, John Bishop, Phil Lemieux, George Kriz, Chris Mohn, Richie Wilkins, Martha Shickle, Richard Ruckman, H. Paige Manuel, Stanley Crockett, Jim Guillano, Smith Cooley, Herschel Kelly, Paul Anderson, Josh Phelps, Brian Madagan, Nick Nerangis Jr., Rhoda Kriz, Jeff Rezin, Joe Graber, Julie Armel, Beth Stern, and Dan Martin.
The Plan will influence every aspect of County planning and development down to the very ordinances used to restrict citizens’ lives in some way, shape or form. Welcome, folks, to the Progressive Utopian Plan of “smart growth” and “sustainable development.” (By the way, if you ever hear or read central planners use those two phrases, realize that it is deliberate. The presumption underlying those terms is that any growth or development not conducive to The Plan is stupid and unsustainable.) The obvious but unspoken philosophy of any plan for “smart growth” and “sustainable development” is that sprawl is bad. Period.
What is sprawl?
Sprawl is the development pattern of segregated, large single-family lots far from existing infrastructure. Of course, descriptions like “segregated,” “large,” and “far from” are in the eye of the beholder. A ten minute drive might be far for some, and a one-acre lot may be large for some, and seeing only seven neighbors rather than twenty-five may be segregated to some. But this is not the case for everyone. In fact, this is not the case for many people.
Fixing What Isn’t Broken
According to The Plan:
Most of Frederick County’s land area is rural in character. Of the County’s 266,000 acres, approximately 243,000 acres are rural and located primarily west of Interstate 81. The remaining acreage comprises the Urban Development Area (UDA) where the majority of the County’s future growth is directed.
Translation: The Frederick County government desires to cram most of the future growth into 23,000 acres of space. One local resident has accurately described this goal as building a “city around a city.”
In 2008, the Preservation of Rural Life in Frederick County reviewed available residential lots and found that “over 92% of the lots created in recent years reside within the UDA.” And according to The Plan, “the Rural Areas of the County have traditionally seen 30% of the County’s new residential growth.”
Based on this information, it is clear that 91% of Frederick County’s land (243,000 Rural acres) only absorbs 30% of new growth and sees less than 8% of new residential lot creation. The areas of the county these central planners are trying so feverishly to “preserve” are seeing the smallest amount of growth!
Fighting Sprawl
The County plans on combating sprawl with the creation of what can only be described as a derivatives market, complete with government manipulation of the tax code and bonus features for specially-designated areas.
In 2008, the Board of Supervisors created the Rural Areas (RA) Study Subcommittee “to deal with increasing development pressures in Rural Areas over the last decade.” The members of the RA subcommittee were Richard Shickle, Gary Dove, Gary Lofton, Cordell Watt, H. Paige Manuel, and Greg Unger.
In 2009, the RA subcommittee presented a “Report and Recommendations” to the Board of Supervisors. On April 22, 2009, the Board of Supervisors approved the Report and Recommendations as a policy component of the Comprehensive Policy Plan. The RA subcommittee’s Recommendations included the creation of a Transfer of Development Rights (TDR) program.
Based on a memorandum from Planning Director Eric Lawrence on April 15, 2010, a draft TDR Ordinance was presented to the Board of Supervisors on December 9, 2009:
At the meeting, staff provided an overview of the ordinance and stated that prior to the meeting, staff was made aware of the Model TDR Ordinance drafted by the State Workgroup that included density bonuses. Discussions during the Rural Areas Subcommittee meetings had included the desire to include density bonuses; however under the wording of the TDR language in the Code of Virginia, it was believed that bonuses were not permitted. Staff then revised the draft TDR Ordinance to include bonuses based on where the density right is located. The revised TDR Ordinance was discussed by the Board of Supervisors at their March 10, 2010 meeting. The Board of Supervisors requested minor clarification and additions and with those changes sent the proposed ordinance forward for public hearing. The draft TDR Ordinance has been revised to reflect the Board of Supervisors’ comments.
According to the same memorandum:
The Planning Commission held their public hearing on April 7, 2010, and recommended approval of the TDR Ordinance by a majority vote, with the following revision: If a property is removed from an Agricultural and Forestal District, the development rights remaining will equal what is available for the underlying sending district minus any development rights already sold.
One citizen spoke during the public comment portion of the hearing, Mr. Paul Anderson, a farmer in the Gainsboro District. Mr. Anderson said he was representing the Frederick County Farm Bureau and he spoke in favor of the TDR Program.
Commission members discussed the possibility for high-density development on the receiving properties without the benefit of proffers to offset costs for community services. This impact was compared to the cost efficiency of providing services in designated growth areas. An issue was raised regarding the methods for calculating development rights on a sending parcel. Staff noted the intention to make the TDR Program as simple as possible so that owners of sending properties would not be required to expend large sums of money for surveying or engineering to determine whether or not to sell their rights. A suggestion was made to include criteria specifying that if a landowner is getting the benefits of being in the Agricultural and Forestal District [AFD] such as doubling of density units, and then subsequently the property is removed from the District after selling the development rights, then the remaining available rights will be reduced by the true number that was sold.
The Insidious Foundation of TDRs
Here is how they work:
- The government determines and restricts private property rights through zoning.
- The government decides how many development rights (ie density) a property has based on government-created zoning ordinances.
- The government defines boundaries for Rural/Sending Areas and Urban/Receiving Areas. Private property generally falls into one of those two categories.
- The government facilitates a one-way derivatives market for Rural landowners to transfer (sell) their development rights to Urban landowners. Participation in the market is voluntary.
- Buyers (Urban landowners/developers) pay for a private property right that inherently belongs to them as free people but has long been restricted by government through zoning laws. (It’s the nature of the beast.)
- Sellers (Rural landowners) receive cash for a derivative—development rights—created by the government.
- The Rural/Sending Area loses those development rights in perpetuity, and future growth is corralled into the UDA.
The only way this market is not going to crash is if the local government continues to tighten the noose of zoning around the private property rights of the people. Should the government decide to repeal zoning ordinances throughout the county, effectively making TDRs worthless, the house of cards would fall.
On April 28, 2010, the Board of Supervisors voted to adopt the TDR Ordinance and Program. The program breaks down Rural Areas into three categories: Sending Area #1, Sending Area #2 and Sending Area #3. Most rural properties are a part of Sending Area #3 with a density transfer of one TDR density right to one dwelling unit. A strip about six miles wide that runs the length of I-81 is Sending Area #2 with a density transfer of one TDR density right to one and a half dwelling units.
Scattered about the county, but concentrated mostly in or adjacent to Sending Area #2 and/or UDAs, is Sending Area #1. The properties in Sending Area #1 are zoned with a transfer ratio of one TDR density right to two dwelling units. These properties are part of Designated Agricultural Districts.
With a density transfer ratio of 1:2, developers seeking to purchase development rights will likely turn to Sending Area #1 first. These properties have a monopoly on the 1:2 ratio until 2015 thanks to the process of becoming a part of a Designated Agricultural District. Every five years, rural landowners can apply to the Agricultural District Advisory (ADA) Committee in order to have their properties included in or removed from the Agricultural District program. The latest renewal deadline was in 2010, and that ADA Committee included the following individuals: Carl C. Ay, James M. Douglas, Dudley H. Rinker, Walter G. Baker, Gary R. Oates, John Steizl, Jack K. Jenkins Jr. and John R. Marker.
According to the Department of Planning and Development, “Agriculture and Forestal Districts encumber the land.” Properties in these districts are restricted from development even if the land is sold. However, “between renewal periods, land owners may request removal from an AFD based on death of a landowner or good and reasonable cause.” The County decides whether or not the request is good and reasonable.
In response to the question “How do I join a District?” on the Department of Planning & Development’s webpage for AFDs, it states:
Any interested landowner can obtain an Application for the creation of or addition to an Agricultural and Forestal District from the Frederick County Department of Planning and Development. The Districts are renewed every five years; 2015 is the next renewal period. Applicants for the 2015 renewal must be submitted to the Department of Planning and Development by January 29, 2015.
Now, I’m no lawyer but it doesn’t take one to see that the Frederick County government is overstepping its bounds by not allowing people to join these districts except during the renewal period that only comes up every five years.
Here is where the county gets its authority to establish a five-year renewal period:
§ 15.2-4309. Hearing; creation of district; conditions; notice.
[Excerpt] The ordinance shall state any conditions to creation of the district and shall prescribe the period before the first review of the district, which shall be no less than four years but not more than ten years from the date of its creation.
(By the way, has anyone actually seen the Frederick County ordinance for the creation of Agricultural and Forestal Districts? If so, please direct me to it because I have yet to find the darn thing.)
And here is where the County is clearly violating State code:
§ 15.2-4305. Application for creation of district in one or more localities; size and location of parcels.
[Excerpt. Emphasis mine.] On or before November 1 of each year or any other annual date selected by the locality, any owner or owners of land may submit an application to the locality for the creation of a district or addition of land to an existing district within the locality.
For those rural landowners who meet Land Use eligibility requirements, real estate taxes are deferred. The Agricultural and Forestal Districts (AFD) also have the following benefits:
Protection against local laws unreasonably restricting or prohibiting farm structures and farming practices during the term of the district; and Protection against local laws unreasonably restricting or prohibiting farm structures and farming practices during the term of the district; and Protection against eminent domain, such as for roadways, where a public review process is required if a minimum of 10 acres is to be taken from a District, or one acre from one parcel in a District. In addition, should the County ever rescind its Land Use Assessment Program, those enrolled in an AFD would be eligible for Land Use under the State’s program, provided land eligibility requirements are met.
According to the Dept. of Planning webpage for AFDs, the first AFD was created in 1980 and named “South Frederick.” The second district, “Double Church,” was created in 1985, and the third was created in 2007—“Red Bud.” All three were updated during 2010, the renewal year.
With such a program in place for the last thirty years (along with the options of selling or donating conservation easements) one wonders why the local government felt the need to adopt a TDR Ordinance at all. The logical explanation is that the government wants to stack-n-pack the unwashed masses into an area equivalent to 9% of the County while giving rural landowners a new way to put cash into their pockets by selling derivatives.
On the same day that the Board of Supervisors voted to adopt the TDR Ordinance and Program (April 28, 2010), the Board also voted to approve the addition of three new Agricultural and Forestal Districts: Albin, Apple Pie Ridge, and South Timber Ridge.
The 2010-2015 Albin AFD consists solely of properties owned by Fruit Hill Orchard and DTS LC. Both companies are owned by C. Robert Solenberger who serves on the Conservation Easement Authority (CEA). His daughter, Diane Kearns (Kerns) also serves on the CEA, and it was she who made the request for the creation of the Albin District and the Apple Pie Ridge District. (Ms. Kearns also served on the 2030 Comprehensive Plan working group.) The 2010-2015 Apple Pie Ridge AFD properties are owned by BHS LC, KSS LC, Becon Inc, and Fruit Hill Orchard. All of these companies are owned by Mr. Solenberger.
The 2010-2015 South Timber Ridge AFD consists solely of properties owned by Cordell Watt or his company Timber Ridge Fruit Farm.
Because these farmers waited until the deadline to create these districts, should any of their neighbors want to join them, they will have to wait until 2015 to apply.
When presented with this information, one Winchester resident and business owner, who asked to remain unnamed, remarked, “They are raking it in from [the sale of the Walmart lot] and now they can tie up the land forever and get nice, tidy checks for the sale of the property via TDRs and tax deductions into perpetuity. It’s perfect for them!”
He added, “They got their view shed, and now they want to close the door behind them so you can’t get yours or ruin theirs!”
The Comprehensive Crony Plan
Many of the people who worked on components of The Plan and/or voted on The Plan have numerous connections to each other, inside and outside of local government. In fact, most of the people who voted or will vote on The Plan also played a major role in designing it or some component of it.
For example, look at the creators of the TDR Ordinance and Program again—the RA Subcommittee. Richard Shickle, Gary Dove, and Gary Lofton were on the Board of Supervisors at the time. Cordell Watt, H. Paige Manuel, and Greg Unger were on the Planning Commission. For years, many of the planning commissioners had been serving with one another in various government capacities with a good number of the same supervisors. It is no surprise that the TDR Ordinance was easily approved by the Planning Commission and then quickly recommended for approval to the Board of Supervisors in 2010.
And if we look at the Sending Area #1 of the TDR program that is granted a double bonus of density rights, nearly one in three acres is owned by Diane Kearns’ father, C. Robert Solenberger. Both Ms, Kearns and her father serve on the Conservation Easement Authority along with Richie Wilkins, Gene Fisher (Board of Supervisors), John Marker, Charles Triplett (Planning Commission) and four others. Wilkins and Marker also served with Ms. Kearns on the 2030 Comprehensive Plan Working Group. Marker and Kearns are members of the Virginia State Apple Board, and they both belong to the Preservation of Rural Life (PRL) in Frederick County, a group that submitted reports to the local government on growth and development in rural areas. In addition, John Marker’s company M&M LP owns nearly 690 acres in Sending Area #1.
Remember, Sending Area #1 consists solely of Agricultural and Forestal Districts. Initial implementation of the AFD program is carried out by the AFD Advisory Committee. At least five out of the eight Advisory Committee members have direct interests in Sending Area #1. For example, James M. Douglas, another PRL member, is Treasurer of Woodbine Farms which owns 1,189 acres in the South Frederick Agricultural and Forestal District. The Sending Area #1 landowners on the AFD Advisory Committee are Dudley Rinker, Gary Oates, John Stelzl, and John Marker. Rinker, Marker and Oates also served on the Comprehensive Plans and Programs Committee (CPPC) and/or the Comprehensive Plan Working Group (CPWG).
Twenty-eight individuals filled the thirty working group positions. At least sixteen of those individuals hold at least one appointed position in the local government. At least five of them are planning commissioners. In fact, nine commissioners of the 14-member Planning Commission served on the CPPC and/or the CPWG. Take Gary Oates, for example. He is on the Planning Commission, the AFD Advisory Committee, and the CPPC. And he owns over 45 acres of land in The Red Bud AFD, likely qualifying his land for bonus density transfer rights.
Also located in the Red Bud AFD are battlefields owned by the Civil War Preservation Trust (CWPT) and the Shenandoah Valley Battlefields Foundation (SVBF). According to the CWPT’s 2009 Annual Report:
CWPT and SVBF are working closely together to save land at battlefields located in Virginia’s Shenandoah Valley. In 2009 the joint effort between CWPT and the Shenandoah Valley Battlefields Foundation to protect 209 acres at Third Winchester, VA, created a 576-acre swath of protected battlefield land.
Obviously these two groups do not intend to ever allow development on their lands. In fact, they have been taking advantage of the County’s Land Use tax deferral program. And yet they are included in Sending Area #1 with a 1:2 TDR. Is this designation simply a matter of belonging to an Agricultural and Forestal District and not really applicable or do the battlefields really have bonus density development rights?
Hopefully Supervisor Dehaven can answer that question considering he is on the Board of Trustees for the SVBF. Oh, and guess who is also a member of the SVBF? C. Robert Solenberger.
Since a majority of the Planning Commissioners were directly involved in the creation of The Plan, The Plan was inevitably approved by the Planning Commission and recommended for approval to the Board of Supervisors.
Considering many of the people in authority positions are rural landowners with similar ideas for the way the county should be developed, it is no wonder that the TDR Ordinance and the 2030 Comprehensive Plan appear to benefit rural landowners, and especially agriculturalists, at the expense of those people in the Urban Development Areas.
If the TDR program results in frequent TDR sales (and local government hopes it does), rural lands not under restrictive covenants or conservation easements will increase significantly in market value, effectively pricing out many middle class families who tend to prefer single family homes with large yards rather than high density and mixed use zoning. Some long-time “rural” residents may find it hard to keep up with a rising property tax bill.
I do not hold out any hope that the Board of Supervisors will reject the 2030 Comprehensive Plan as it is currently drafted. The goal of The Plan fulfills the vision of the Board of Supervisors, the Planning Commission and all their cronies. It is one, big, happy family.
The Winchester Watchdog 