An Update on Mary's Landing
City, residents continue to be at odds over whether project requires a special use permit.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
Email Adele
Fredericksburg City planning staff last week disapproved a subdivision application and boundary line adjustment request from the developers of Mary’s Landing, but said they expect the application to be resubmitted.
There is not yet an approved site plan for the 63-townhome development, which would be located on two largely unused parking lots that lie between Charles Street and Fall Hill Avenue across the street from the old Mary Washington Hospital building. Two major site plans have been submitted and disapproved by the city’s technical review committee.
But the City continues to take the position that the project can be approved administratively and does not require a special use permit, and a group of city residents continue to contend otherwise.
City Attorney Kelly Lackey has asked attorney Giff Hampshire, who is representing the residents, to take his clients’ concerns up with the developer, and Council members say they cannot discuss the project due to “potential impending litigation,” which the clients say does not exist.
Emails exchanged
Hampshire and Lackey have exchanged five emails about the project—three from Hampshire to Lackey and two from Lackey to Hampshire.
Hampshire and the residents contend that the project requires a special use permit, because it exceeds the density permitted in the Creative Maker Zoning District and involves moving lot lines and adjusting lot sizes.
“My clients correctly believe that in order for the Project to exceed a density level of 8 units per acre (for a total of 30 units on this 3.86-acre tract), they would need to secure a special use permit from the City after public hearings held by both the Planning Commission and City Council,” Hampshire wrote in a June 18 letter attached to an email to Lackey, which was also sent to City Council members and Planning Commission Clerk Tanagra Cafferky.
Hampshire said he has found nothing in the City’s zoning ordinance that states that nonconforming undeveloped lots can be built upon in violation of the current zoning ordinance. He said there are code sections that “[allow] the continuance of a nonconforming use” but nothing that permits “a brand-new use on a nonconforming lot.”
He also said he has not seen evidence that “the City approved a subdivision plan that validated the lots,” which would confirm the owner’s right to develop.
He said the City continues only to state that “the lots have existed in the land records” from an 1891 Fredericksburg Development Company plat.
Hampshire’s letter requests that the City “reject the pending site plan application and insist that the Developer seek a special permit to secure the additional density for the Project and submit a major subdivision plat to the Planning Commission and City Council for their review and approval.”
But in her July 7 email response, Lackey wrote that the development “has and continues to be considered a development subject to administrative review.”
“Your analysis continues to conflate the issues of whether this development consists of a boundary line adjustment plat or re-subdivision,” Lackey wrote. “Boundary line adjustment is separate and distinguishable from re-subdivision (or partition) and inherently allows reconfiguration of lots (without yielding ‘new’ lots) when otherwise consistent with local ordinances (A conclusion to which we seemingly must agree to disagree for various reasons).”
She told Hampshire that his “direct communication with members of the Planning Commission and City Council was unanticipated and unavailing” and continued, “It is highly recommended that your clients engage the developer rather than elected or appointed officials if they want to see changes to the development plan.”
Hampshire wrote that he was sharing his letter with the Planning Commission and Council because his clients “have raised these concerns about Mary’s Landing for the past five months because they truly want to assist the City in applying and enforcing the City’s own ordinances.”
The elected and appointed bodies should be aware that “City staff is on the verge of exceeding their authority by approving a major residential project in the City without the required public notice and participation through the required special use permit process for the increased density in the Creative Maker District,” Hampshire wrote. “My clients expect that the density limitations of that district be applied to all developers.”
No pending litigation
Hampshire’s clients—who are members of the Fredericksburg Neighborhood Coalition—told the Advance this week that there is no pending litigation and that they do not want to pursue any.
Hampshire also stressed this in his June 18 letter.
“[My clients] do not want to fight with the City,” he wrote. “On the contrary, they stand ready and willing to meet with you and other City officials to reach an amicable accord on a fair and legally sound process for approving or disapproving this Project.”
City Council members in recent months have been responding to constituents’ questions about the by-right status of the Mary’s Landing project with versions of the same statement.
“As I’m sure you’re aware, some members of the Fredericksburg Neighborhoods Coalition have retained an attorney on this matter. So while I would love to chat about this project, unfortunately I am unable to comment at this time due to the potential impending litigation. Happy to discuss any other matter related to land use in the City,” Councilor Will Mackintosh wrote in a July 17 email response to a resident.
Mayor Kerry Devine wrote a similar response to the same resident on July 16: “As you may know, some residents have engaged a law firm to represent them in this matter. City Council is represented by the City Attorney. Due to that, I cannot comment on the Mary’s Landing project at this time. Happy to talk with you about City issues unrelated to this project.”
The resident received similar responses from Councilors Jon Gerlach and Jason Graham.
Subdivision plat disapproved
The planning department’s Technical Review Committee disapproved the developers’ subdivision plat on July 31, “pending the correction of the following items.”
The City’s senior development administrator, Marne Sherman, said the developers are “are expected to resubmit the plat and address the noted deficiencies.”
Among the “deficiencies” is the fact that the submitted plat states that “There are no existing structures or setback encroachments along any created parcel lines.”
Sherman noted in the staff comment letter that was returned to the developers that this is incorrect. There is an existing building at 435 Hunter Street, which currently houses the Rappahannock EMS Council, but was originally built as the city's Public Health Center. It was designed by local architect and historic preservationist J.J. Ballentine and completed in 1960.
“Let’s discuss the status of the 435 Hunter Street building,” Sherman wrote.
The developers also need to resolve easement issues with adjacent parcel owners.
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Two points--1) Agreeing that there are two viable legal interpretations why wouldn't City Council err on the side of a public process that better protects the city's interests and goals? 2) City Residents had been trying since at least March to get City Council members to discuss their issues with the Mary's Landing project and process. When council did finally respond no answers were forthcoming and residents were told they should go to the developer with their problems. This occurred before an attorney was hired. To use litigation as an excuse for months of stonewalling is disingenuous at best.