Potomac Greens v. CITY COUNCIL OF ALEXANDRIA, VA.
| Decision Date | 27 February 1991 |
| Docket Number | Civ. A. No. 90-123-A. |
| Citation | 761 F. Supp. 416 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | POTOMAC GREENS ASSOCIATES PARTNERSHIP, S/F Potomac Greens, Inc., RF&P Development Corp., and RF&P Railroad Co., Plaintiffs, v. CITY COUNCIL OF the CITY OF ALEXANDRIA, VA., the Planning Commission For the City of Alexandria, Va., and the City of Alexandria, Va., Defendants. |
Thomas F. Farrell, McGuire, Woods, Battle & Boothe, Alexandria, Va., for plaintiffs.
Philip G. Sunderland, Office of the City Atty., Alexandria, Va., William H. Crispen, Leslie M. Alden, Verner, Liipfert, Bernhard, McPherson & Hand, Washington, D.C., for defendants.
In this suit the plaintiffs seek declaratory, injunctive and other relief against the City of Alexandria. Potomac Greens asserts that the City of Alexandria imposed conditions for site plan approval that exceeded its authority. Those conditions include the construction of additional lanes on the George Washington Memorial Parkway, the elimination of a level of the proposed parking garage, and compliance with the transportation management plan ordinance.
The Potomac Greens site is a 38.5 acre parcel of land located adjacent to the George Washington Memorial Parkway across from Daingerfield Island. Plaintiffs submitted a site plan to the City in February 1987 proposing construction of a project comprised of 16 buildings of approximately 2.35 million square feet of office space and 100,000 square feet of retail space. The site plan also included a proposed interchange on the Parkway at the entrance to the site. The site plan was filed pursuant to the City's development review system as set out in the City's site plan code. Alexandria City Code § 5-5-1 et seq.
The original site plan submitted by Potomac Greens utilized an incorrect method for the measurement of building heights resulting in the proposed buildings exceeding the maximum permissible height contained in the City's zoning code. As a result, the plaintiffs filed a revised site plan in April 1987.
When a site plan is submitted to the City, it is first reviewed by the City staff and the site plan coordinating committee. The coordinating committee then submits a report on the site plan with findings and recommendations to the Planning Commission. The Planning Commission conducts a public hearing on the site plan and either approves or disapproves the plan.
In May 1987, the Potomac Greens site plan was reviewed by the coordinating committee which recommended forty-four conditions to approval. Potomac Greens agreed to accept and satisfy most of the conditions.1 On May 16, 1987, the City Council passed the Transportation Management Plan Ordinance requiring a plan by the developer to reduce the traffic and transportation impact of the proposed development. The Planning Commission conducted public hearings on May 21, 1987 and afterward voted 7-0 to disapprove the Potomac Greens site plan. Plaintiffs subsequently appealed to the City Council where, after public hearings, the City Council voted unanimously in June 1987 to affirm the Planning Commission decision to disapprove the site plan.
The City Council denied approval for several reasons. The site plan did not comply with the recently adopted transportation management plan special use permit ordinance. Also, a level of the parking garage needed to be eliminated from the proposed site plan and the developer had to construct additional lanes on the George Washington Memorial Parkway in order to obtain site plan approval.
Originally, suit was filed in the Circuit Court for the City of Alexandria and removed to this court. That action was voluntarily dismissed without prejudice on motion of the parties in order to attempt to resolve the dispute over certain conditions imposed by the City on the plaintiffs. The voluntary dismissal included the condition that suit could be refiled within two years. Failing to resolve the dispute, this action, seeking the same relief, was filed in January 1990 and stayed pending review of a new development application for the site. In October 1990 the new development application was withdrawn and the stay was lifted in this court.
This matter is now before the court on cross-motions for summary judgment. Potomac Greens asserts that the City's Transportation Management Plan Ordinance (TMP) is unconstitutionally vague and that the City lacked the power to enact such an ordinance. Further, Potomac Greens alleges that the subsequent conditions imposed by the City in order to obtain site plan approval exceeded the City's power. Plaintiffs argue that the City cannot require private landowners to build additional lanes on public highways as an off-site improvement nor can the City deny the site plan solely on the basis that a parking garage level is economically infeasible to build safely. Finally, Potomac Greens asserts that the TMP ordinance as applied abridges its vested property rights and cannot be made a condition for site plan approval.
The City argues that the TMP ordinance is not impermissibly vague and that it properly exercised its authority given by the Virginia Code and the City Charter in enacting the TMP, in requiring the developer to construct additional lanes on the Parkway and in requiring the elimination of one level of the parking garage. Finally, the City asserts that Potomac Greens lacks any vested rights which preclude application of the TMP to the site plan. There are no issues of material fact in dispute as to these motions and the issues are proper for resolution on summary judgment.
The TMP requires a separate application for a special use permit to be submitted at the same time as the applicant's proposed site plan for development is submitted. Whenever a development will include a building over fifty thousand usable square feet of commercial space, a site plan applicant must file for the TMP special use permit. In order to receive a TMP special use permit, a TMP application must demonstrate a "significant reduction in the traffic and transportation impacts of the use." Transportation Management Plan Ordinance, § 7-6-325(b).
Before issuing the special use permit, the City Council must determine if the requirements of Section 7-6-325(b)(1) and (2) are met by the applicant.2 First, whether "the applicant's transportation management plan is in accord with the requirements of this article" and second, whether the transportation management plan "demonstrates that reasonable and practicable actions will be taken in conjunction with and over the life of the proposed use which will produce a significant reduction in the traffic and transportation impacts of the use." The ordinance outlines several traffic reduction percentages which the City Council may consider when approving a TMP special use permit. However, there is no standard contained in the ordinance by which the City Council can measure a plan or gauge whether traffic will be reduced significantly by an applicant's plan.
When a statute or ordinance is "so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative." Mundy Motor Lines v. E.I. duPont de Nemours & Co., 199 Va. 933, 103 S.E.2d 245, 248 (1958) (quoting Drake v. Drake, 15 N.C. 110 (1833)). The statute at issue in Mundy, Va.Code Ann. § 46-2 (1950), read in pertinent part:
It shall be unlawful for any person, firm, or corporation, after receiving a license from the Commissioner as herein provided to transport any commodity in any territory at a less freight rate or charge than that fixed by the State Corporation Commission for a common carrier for the same commodity in the same territory.
The court in Mundy found that the language of the statute imposing minimum freight rates on contract carriers was "vague, uncertain and insufficient ... to establish a reasonable standard under which rates can be imposed...." Mundy, 103 S.E.2d at 248. The statute gives no indication as to which common carrier rates are to constitute the guideline for determining minimum rates for contract carriers.
Similarly, the TMP ordinance does not contain reasonable precision for enforcement. The terms "significant reduction" or "reasonable and practicable" are not defined anywhere in the ordinance. Also, there are no standards for determining how the requirements of the ordinance in § 7-6-325(b)(1) and (2) are to be calculated. The TMP contains no guidelines for applicants to determine what constitutes a significant reduction in traffic and transportation uses warranting the grant of a permit.
In addition, the balance of the TMP ordinance fails to elucidate the meaning of the terms "significant reduction" and "reasonable and practicable". The traffic reduction percentages listed in the ordinance are merely permissive, non-binding suggestions which fail to guide the City Council in its consideration of a special use permit. There is no tradition where persons affected by the ordinance understand its meaning through years of experience. When is there a "significant reduction" in the traffic which would warrant the grant of a permit? While a ten to thirty percent reduction may be significant with regard to one project, the City Council is free to determine that it is not significant for another project. Such opportunity for arbitrary application of the ordinance renders the ordinance vague. An applicant does not know what to do in order to develop his property. The TMP § 7-6-325(b)(1) and (2) fails "to provide a person of ordinary intelligence with a standard of conduct to which said person is able to accord his conduct." Vintage Imports, Ltd. v. Joseph E. Seagram & Sons, Inc., 409 F.Supp. 497, 509 (E.D.Va.1976).
The traffic reduction percentages contained in the TMP are not mandatory, but are mere suggestions. Under the ordinance as written the City Council may completely...
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Potomac Greens Associates Partnership v. City Council of City of Alexandria
...Rule" because Alexandria was without express or implied power to enact the ordinance. SeePotomac Greens Assocs. Partnership v. City Council, 761 F.Supp. 416, 419-22 (E.D.Va. Feb. 27, 1991). Potomac Greens appeals the notice issue, and Alexandria appeals the two rulings striking down the sub......
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City Council of City of Alexandria v. Potomac Greens Associates Partnership
...allowed for "arbitrary application" and (2) violated Dillon's Rule because Alexandria was without express or implied power to enact it. 761 F.Supp. 416. Alexandria appealed the latter two rulings, and Potomac Greens appealed the ruling regarding notice, to the United States Court of Appeals......