Robert Gordon: Why have a plan if you ignore it to create a PUD?
Published 6:57 pm Friday, June 16, 2023
What follows is a legal opinion that I have drafted in my capacity as a resident of Farmville and a licensed Virginia attorney. I represent no client in this matter. I am of the opinion, as a matter of law, that the Town of Farmville is without legal authority to adopt Sec. 29-26.1, the proposed Planned Unit Development ordinance (“PUD ordinance”) because it not planned for, envisioned in, and exceeds all allowable land use density set forth Farmville’s existing Comprehensive Plan, which, by state law “controls”.
I grew up in Farmville and left here over 50 years ago. Mostly, I’ve lived in Northern Virginia and DC working as an attorney focusing on real estate development and related litigation. That means I’ve both represented and opposed state and local governments in diverse matters, including land use, condemnation, development permitting, government contracting and employment matters. I’m not holding out myself as an expert; but I have relevant experience in local government land use matters.
Sometime back, a series of Farmville Herald articles piqued my interest in a proposed planned unit development ordinance being proffered by Town staff. Of particular concern were: (i) a pending sale of the Longwood Village apartment project to Richmond real estate developer Better Housing Coalition, and (ii) the fate of the staff driven PUD Ordinance, on which the sale of Longwood Village overtly hangs.
Email newsletter signup
As a resident of Farmville, I spoke before the Town Council in April about concerns I had with the PUD ordinance/Longwood Village project and promised that I would look further into the matter. I have done so, and what follows is my legal opinion based on review of the relevant state and local legal authorities, the proffered arguments in favor of the PUD ordinance, and the proposed PUD ordinance itself, now pending before the Farmville Town Planning Commission for consideration and recommendation.
It is my opinion that: (i) the Town of Farmville must follow its own duly enacted 2020 Comprehensive Plan in consideration of the proposed PUD ordinance, and (ii) the provisions of the proposed PUD ordinance/Longwood Village project conflict with the Comprehensive Plan, which by state law controls the approximate location, character and extent of features provided for therein. Consequently, the Town has no legal authority to adopt the proffered PUD ordinance/Longwood Village Project.
The proposition, that a locality such as the Town of Farmville must and should follow its own legally adopted Comprehensive Plan in considering any land use legislation, whether it be the PUD ordinance at hand or the rezoning of a specific tract of land, should be self-evident.
That it is not self-evident, is readily apparent in arguments to the effect that Farmville’s Comprehensive Plan is a “dynamic document” that can support a proposed development of the Longwood Village property that is not planned for, contemplated by, or even depicted in the various narrative plans and maps that supposedly form Farmville’s state mandated plan for community growth.
The Comprehensive Plan is “dynamic” in two respects: (i) the plan may be freely amended at any time at the direction of the Town Council and (ii) the plan must be reviewed every five years “to determine whether it is advisable to amend . . .” Va. Code §§ 15.2-2229, 2230 (2023). But it beggars reality to suggest that the Town may or should ignore its own Comprehensive Plan in the adoption of any land use ordinance, much less one that clearly exceeds the scope of that Comprehensive Plan.
Virginia is a “Dillon Rule” state, which means the state government is sovereign and that all local government power to make laws or regulations derives from the state. Thus, a local jurisdiction is limited in its exercise of the state’s sovereign authority to those powers (i) expressly granted by the state; (ii) fairly implied in or incident to the powers expressly granted; or (iii) essential to the declared object or purpose of the document that formally organized the local jurisdiction. Any doubt as to the application of these principles is resolved against the authority of the local jurisdiction.
To the extent the reader would like an excellent review of the interplay between state law, the comprehensive plan and Buckingham County’s legislative authority to adopt a proposed gold mining ordinance, County Attorney E.M. Wright, Jr.’s presentation to the Buckingham Planning Commission meeting on May 15 is one of the best succinct expositions on the matter I have seen.
When the General Assembly uses language stating that the comprehensive plan “shall control” the approximate location, character and extent of each feature shown on the plan, it is mandatory and not a recommendation. Simply stated, the Comprehensive Plan is the state mandated planning document for a locality like Farmville and must be followed when reviewing a proposal such as the PUD ordinance/Longwood Village project.
The proffered PUD ordinance conflicts with the Town of Farmville’s 2020 Comprehensive Plan in, at least, the following instances:
a. The proffered PUD ordinance allows development density that starts at 24 dwelling units to the acre and may go as high 36. The 2020 Town of Farmville Comprehensive Plan caps development density at 24 units to the acre.
b. The 2020 Town of Farmville Comprehensive Plan adopted an affordable housing plan, embodied in the Plan’s Urban Development Area program. It designated vast areas of the town for affordable housing purposes at up to 24 dwelling units to the acre. The PUD ordinance and the Longwood Village Apartments property is not part of that plan.
c. The Longwood Village Apartments property (for which the PUD ordinance is being proffered) is designated in Farmville’s Future Land Use Map as an institutional use and not within any of the designated Urban Residential Areas.
Doesn’t the PUD ordinance interfere?
State law says that the Comprehensive Plan shall control the future approximate location, character, and nature of the use of the Longwood Village Apartment property. Since the PUD ordinance: (i) provides for density development exceeding anything contemplated by the existing Comprehensive Plan, (ii) enables a housing program not contemplated or authorized by the Comprehensive Plan, and (iii) is being proposed principally to facilitate the commercial sale of putatively privately owned property, designated solely for “institutional use” in the Comprehensive Plan, the PUD ordinance/Longwood Village project cannot be adopted.
I don’t believe authority for PUD exists
Simply stated, the Town has no authority to ignore the clear development plan adopted in its own 2020 Comprehensive Plan and adopt the proposed PUD ordinance, currently before the Planning Commission.
Stated another way, why even have a comprehensive plan, just to ignore it to facilitate the sale of Longwood Village to an out-of-town real estate developer?
Robert R. Gordon is an attorney who recently returned to Farmville. He can be reached at firstname.lastname@example.org.