That’s what the Vienna Town Council in the wee morning hours of July 16 decided against doing, after finding out what taking back a rezoning approval would mean in terms of legal peril and harm to the town’s reputation.
Following an unusual joint public hearing between the Town Council and Vienna Planning Commission, Council members did not advance for consideration a motion – possibly unprecedented in the town’s history – to rescind and repeal the Council’s June 17 approval of a mixed-use rezoning at 374-380 Maple Ave.
The project, advanced by longtime Vienna developer Dennis Rice on behalf of by Red Investment LLC and MJW Maple LLC, will feature 7,500 square feet of ground-floor retail topped by three floors with a total of 37 condominium units.
The Council earlier approved the 54-foot-tall building under the town’s Maple Avenue Commercial (MAC) ordinance, which gives developers density incentives in exchange for architectural elements and amenities sought by the town.
The Council at the July 15 meeting opposed rescinding the decision, but instructed town staff to consult with the developer about tweaking some of the project’s proffers, including maintaining the width of Wade Hampton Drive, S.W., at 36 feet instead of the agreed-upon reduced width of 32 feet.
While some residents decried the potential street narrowing as an uncompensated “sweetheart deal” for the developer, Rice said he had agreed to it at the suggestion of the Vienna Public Works Department.
Public Works Director Michael Gallagher said the town’s right-of-way along Wade Hampton Drive would remain 50 feet, but having the narrower street would slow down traffic and allow for wider areas for sidewalks and plantings on either side of the road. Pedestrian-friendliness is one of the MAC ordinance’s goals, he added.
Rice indicated a willingness to keep the street at 36 feet, and said his building’s size would have to be reduced only by about 265 square feet as a result.
Getting to that decision took nearly six hours and involved impassioned and pointed testimony from several long-experienced hands in the community.
Several community members, as they had at previous public hearings, still objected to the development’s size, traffic-safety impacts and neighborhood compatibility. But the meeting also saw a sizeable contingent opposed to rescinding the vote.
Laurie Cole, a former Town Council member who stepped down last year after subsequent service on the town’s Planning Commission, warned of “grave damage” if the Council voted to rescind. Doing so would make the town appear “capricious and unreliable” as a business partner, she said.
“What seems to be happening here is that parties unhappy with the June vote are trying to undermine a duly-approved action of the Town Council by cherry-picking statutes out of context in the commonwealth or municipal codes as a pretext to invalidate the decision,” she said. “That is a serious assault on the town’s integrity.”
John Sekas, another Vienna developer, said builders must be able to trust that the town’s zoning rules are not in flux.
“It’s not fair to take it out on one project,” he said of those dissatisfied with the MAC ordinance.
The Council approved the 374-380 Maple Ave., W., project June 17 on a 5-2 super-majority vote, the minimum required because surrounding property owners had filed a protest petition. (Returning the favor, the applicant filed a protest petition against the possible rescission.)
The June 17 vote occurred at the last meeting for former Council members Carey Sienicki and Tara Bloch, who respectively did not seek re-election and were voted out of office in the May 7 election. Some residents who testified at the July 15 meeting objected to the rezoning’s being approved by a “lame-duck Council.”
Council members Pasha Majdi and Howard Springsteen, who had voted against the rezoning, submitted a letter June 25 to Town Manager Mercury Payton requesting that the decision be placed on the July 15 Council agenda for possible rescission. The Council agreed to do so July 1.
Majdi at the start of the July 15 meeting said there had been some confusion about the matter, saying the intent was not to kill the application, but send it back to the Planning Commission to fix mistakes. But Town Attorney Steven Briglia said rescinding the vote effectively meant negating the rezoning.
“I have opined that we’re a bit off the legal map,” he said.
Before the Council took up its deliberations on the possible rescission, Planning Commission members voted 7-1 (Commissioner David Miller voting nay) to recommend that they not do so.
Planning Commission Chairman Michael Gelb recalled his childhood in Scranton, Pa., and learning lessons about integrity from his father.
“It really feels to me like . . . the notion of a rescission is an attempt to change the rules and find a way to create new rules in the middle of a process to find a way to change an outcome that you just didn’t like,” Gelb said. “What’s really at stake is our reputation, whether the town of Vienna honors its own rules, whether we’re a fair and honest and reliable partner for those who want to do business with and in Vienna.”