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Golf Course Development Foes Say History on Their Side

by Karen Goff — January 14, 2015 at 9:00 am 1,162 17 Comments

1971 map of Reston South Golf Course

Two groups leading the fight against development at Reston National Golf Course say 1971 development designations will be on their side when the Fairfax County Board of Zoning Appeals considers the case next week.

The BZA will consider the appeal of RN Golf, the owners of the 166-acre public course, at a hearing on Jan. 21 at 9 a.m. at the Fairfax County Government Center.

RN Golf, a subsidiary of Northwestern Mutual Insurance, first asked the county in 2012 whether the course was considered residential. The county said it is designated permanent, open recreational space, and to change the designation would require a change to the Reston Master Plan.

RN Golf is appealing that decision, though the company postponed the hearing several times since 2012. However, the case will now be heard — and there is additional solid historical information than there was nearly three years ago.

Attorneys for Reston Association and grassroots advocacy group Rescue Reston have since located the 1971 documents that clarify the land use of the course at Colts Neck and Sunrise Valley Drives.

Randall T. Greehan, attorney for Rescue Reston, says in the letter to the BZA that the land use was approved in three rezoning applications in 1971 and is designated as “South Golf Course/PermanentOpen Space.”

Greehan points out that the original documents show future residential uses surrounding the golf course but not on the golf course. Those clusters, such as Indian Ridge and Golf Course Square, were built later in the 1970s.

“Because the three legislatively approved development plans do not show residential uses on the golf course property, amendments to them would be required before any residential use would be allowed there,’ Greehan writes. “The zoning ordinance in effect at the time of all three of these 1971 approvals required that all three RPC zoning applications ‘be in accordance with the comprehensive plan.’ ”

Greehan’s other points:

  • The zoning ordinance states that “uses in the RPC [Residential Planned Community] District shall be permissible only in those areas designated on the development plan.”
  • The ordinance prohibits any significant modifications to a development plan without first going back through the public hearing process before the planning commission and board of supervisors “in the same manner as the original application.”
  • “Based on these provisions, it is clear that development plans approved in 1971 limit and define how, and to what extent, the rezoned properties could be developed and used,” he writes.

Greehan says RN Golf’s stance that “the subject property was originally and now continues to be zoned for residential uses under the PRC” and that the golf course property can be used for any residential use is incorrect.

“In 1971, property in PRC was sub-classified as residential, convenience center, village center, town center or convention center,” Greehan said. “However, PRC said only uses designated on the map could be used. golf course clearly planned as open space and golf course.

RN Golf has said that a zoning official’s 1993 opinion is evidence the land could be residential.

Greehan got in touch with Melinda Artman, the former zoning official, who said “my March 30, 1993 letter is simply a zoning compliance letter confirming that use of a golf course on the property was legal under PRC district regulations. My letter was in no way intended to imply that any use other than the golf course was allowed on the property.”

RA attorney John McBride makes several of the same points in his letter to the county.

“Reston Association is an aggrieved party in this appeal,” he writes. “Unplanned redevelopment of of the RNGC land to uses other than shown in the comprehensive land use plan will have significant adverse impacts on Reston Association — its mission, programs, financial position and maintenance obligations. … Redevelopment of the golf course would have significant detrimental consequences to [golf course neighbors] and their real estate.”

McBride also said that RN Golf purchased a golf course that had always been a golf course. The historical implication: it’s always going to be a golf course — unless the owners want to go through the rezoning process, from which RN Golf claims it should be exempt.

“RN Golf purchased the course on April 5, 2005, 43 years after it was first planned for recreation and open space, and 34 years after property was zoned for and used as a golf course,” he wrote. “The Zoning Admin ruling should come as no surprise to the golf course owner. If the appellant intends to change the longstanding planned and zoned use of the golf course land, there is a well established process to do so.”

Meanwhile, in the current Reston Master Plan Phase 2 process, there is specific wording that both of Reston’s golf courses shall remain golf courses.

Photo: 1971 planning map of Reston showing Reston South Course, now Reston National Golf Course.

  • Adrian Havill

    Not that this should discourage anyone from changing plans and not attending the BZA meeting on January 21 at nine a.m. Be there early.

  • RestonRick

    Thank you RestonNow for the great article that clearly explains how Northwestern Mutual is attempting an end-of-round of Fairfax County zoning process! Great job!

  • MaggieSays

    Not to discount any of this, but isn’t there a process and precedence to seek rezoning for a reason? Otherwise industrial areas of cities would never be turned into residential areas, right? Maybe I am missing something about the legal side of things. I don’t really want the golf course turned into a bunch of houses, but I think the owners have right to go through a legal process and either be approved or rejected.

    • Dee Mueller

      You are missing the point. The owners of the golf course don’t want to go through the proper legal process and attempt to get the property rezoned for mixed use or residential space. The owners are appealing to the County BZA to get clarification on whether the property is considered residential. They know its not but for them its worth a try. What a windfall for them if they got approval to develop that space. How many town homes could they jam in there?

      • MaggieSays

        I admittedly do not know the legal process for zoning and rezoning, so pardon my missing the point, but an appeal for clarification sounds like a step in the direction of rezoning. Perhaps every process has to start somewhere.

        • Constance (Connie) Hartke

          FYI, the County process requires (1) an amendment to the adopted Comprehensive Master
          Plan, (2) a Development Plan Amendment and (3) PRC Plan approval from the Board
          of Supervisors. The owners are trying to bypass this process.

          • MaggieSays

            Then why is everyone so worried about it? If there is anything we love around here, it’s bureaucracy. It seems like the bureaucracy will be the thing that will stop any change in zoning or development of the golf course.

        • Bright Sider

          First, I am certainly not advocating that a bunch of homes go in there either, and I don’t believe they have said they intend to do that, but I think people arguing that they are trying to totally bypass rezoning are actually missing the point. The real point is that if the Master Plan was ambiguous, or in fact allowed the land to be considered “Residential” and it just happened to have been developed as a golf course, then the recent changes to policy and in the Phase 2 Master Plan would constitute a regulatory taking. As the Dillon Rule in Virginia largely gives a property owner a right to get his/her property zoned to a category at least as dense/valuable as that reflected in the comprehensive plan in effect when he/she purchased it (admittedly, an over simplification, for the lawyers in the audience), if the County “changes” the designation that existed before, they would (and should) be entitled to compensation.

          This case is REALLY about whether or not the financially tenuous golf course has either a case against the County for what was taken from it, or from the market to sell its only asset for redevelopment. It can still be stopped from development, as the County has already basically said “over my dead body”.

          • John Farrell

            The course is NOT “financially tenuous.” It actually is quite successful financially.

            The Master Plan is not ambiguous, as the letters from the RA atty, the Reston Rescue atty and the County staff report make clear. And the Master Plan for Reston National hasn’t been changed nor is it proposed to be changed.

            Dillon’s Rule does not give a land owner the rights described above or anything like that described above.

            There is no regulatory take here as that would require the deprivation of ALL economically viable use which has not happened here.

  • Adrian Havill

    Ted Lerner, is that you?

    • John Farrell

      Good question!

      Having 40+ years in zoning, 30 years practicing in Fairfax and 20 years teaching zoning law to other Va. lawyers, and rightfully gaining a reputation among local government attorneys as a zealous advocate of the rights of land owners, I am obliged to correct the anonymous Bright Side’s multiple inaccuratcies.

      Financial success is not “in the eye of the beholder.” it’s a matter of the books. So simple invitation, Bright Side: get Northwestern to show the public it’s books on the course’s operation. The best proof of the financial viability of the golf course is that it’s profitable operation has never been denied by Northwestern Mutual.

      When a landowner wants to have their development rights “clarified,” they seek a zoning administrator’s determination. Northwestern did that in 2012.

      The only reason to appeal a zoning administrator’s determination to the BZA, as Northwestern has done in this case, is because the landowner disagrees with the zoning administrator determination of their zoning rights.

      Thus, Northwestern’s suggestion, repeated above, that the appeal is merely an attempt to have zoning rights clarified is disingenuous, at best.

      On the issue of regulatory taking, I invite anyone to review the U.S. Supreme Court’s decisions in Lucas, 505 U.S. 1003 and Palazzolo, 533 U.S. 606. To be a compensable taking, the regulation must deprive the landowner of ALL economically viable use, not some economically desirable use.

      Dillon’s Rule is a limitation on the general power of local government. It was used to defeat Fairfax’s attempt to adopt a mandatory deposit on soda bottles. It’s application in zoning law restricts local government to only impose those constitutional restrictions on landowner’s rights that have been authorized by the General Assembly. It is a red herring because the effects of Dillon’s Rule on local governmental power are also achieved in “Home Rule” states, the state legislatures just right the state code differently.

      Orderly review of a proposal to redevelop the golf course is clearly stated in the zoning administrator’s position in the staff report and accurately repeated in Ms. Hartke’s comment above.

      Sorry for the length of the comment. We have to accurately know the rules whenever playing the “zoning game.”

      • Bright Sider

        I will not get into a continuing debate with you on this, but to sum up Northwestern’s purported reasons as “disingenuous at best” is unfairly dismissive, unless you actually know they have an untoward mission in their hearts.

        As for Lucas and Palazzo, read cases and scholarly articles that have come out SINCE those decisions, and you will note that the “all economic value” test is far from settled law, as courts continue to wrestle with the case where substantially all, or most, or a lot, or some of the viable use is taken. It still is, and should be, about what were the rules before they bought it, and if those are actually changed (which people are trying to characterize as “clarifying” what always existed), then it was a taking. That is just basic logic, even if it doesn’t fit conveniently into the morass of legal caselaw. If, however, if really is “clear” that it was always the rules that it could never be used other than as open space, you all will win in the courts when this inevitably ends up there. I beg to differ, however, and believe the Phase II Master Plan is actually looking to clean up what was completely ambiguous before.

        P.S. – I am certainly not Ted Lerner (or writing for him or anyone on his staff), and I am in no way associated with Northwestern or any of the people working on their case, I am just a citizen reading about what feels like neighbors trying to impose their will over someone’s private property rights, and wondering how any of you would feel if your neighbors used that same tactic against you … for something you wanted to do (or needed to do for economic reasons) now or down the road.

        • RestonRick

          Northwestern Mutual purchased a golf course and would have been best served if they clarified their zoning rights prior to making this investment. I doubt very much if the previous owners would have sold it for such a price if they found that the land could be developed into something other than a golf course. Reasonable people see what Northwestern Mutual is doing for what it really is. An attempt to create a windfall profit by throwing money and lawyers at a situation with zero regard for the impact on the existing property owners and the community at large. They’re bad neighbors and bad for Reston and we need to send them packing.

        • John Farrell

          Not interested in a continuing debate? That horse left the barn 2 exchanges ago.

          Yes, I am dismissive of that particular explanation for Northwestern’s decision to appeal the zoning administrator’s determination to the BZA as any rational person would be. And no one needs to be a mindreader as the action is self-revelatory.

          If there is a citation for a U.S. Supreme Court or even one of the Circuits reversing Lucas, Palazzolo or even Grand Central, please do share it with the rest of us.

          This latest suggestion that local government is somehow bound to only apply the the law as it existed when Northwestern bought the property would appear to be a vested rights claim which also is contrary the case decisions and statutes of the Commonwealth and is not part of Northwestern’s appeal to the BZA nor could it be since the BZA doesn’t have jurisdiction to rule on vested rights claims.

          A landowner can not establish a vested right in a land use that was never the subject of an significant affirmative governmental act.

          • Bright Sider

            This case is about whether or not those restrictions that everyone wants so hard to be true, which limit it to “permanent” open space, actually WERE enacted. I understand your theory on that, and if it is proven (which I would bet still ends up in court to prove defintively after the BZA completes what it has already basically signaled it will do), then you all win and get what you want.

            If not, and if in fact the property was zoned as residential without the restrictions imposed formally, then they have a different set of rights. I believe their position is that it actually was affirmatively granted, and the original developer chose to use that portions of the land as a golf course, which I think I recall reading was under a Special Exception that predated the PRC zoning, even.

            To suggest other than that the new statements in the Phase 2 Master Plan trying to make definitive, that which has been in debate in this case for at least the last five years, and “clean up” the record is equally disingenuous. My beef with this is not about whether or not it would be nice to see that golf course remain in perpetuity, I do believe that, but it is really about principles of property rights, and what it seems like the opposition is trying to do in this specific case could have a broad and very detrimental impact on property rights (unless, of course, the facts actually ARE as clear as you presume they will be proven to be).

            John McBride’s quote in the original article is just trying to set up a Lucas second tier nuissance or Penn Central argument, in case it get there, but it plays on the emotions of people who think they own that open space … they don’t.

          • John Farrell

            This case is about which process will be required to redevelop the property: a legislative process (Comp Plan Amend., Develop Plan Amend, etc.) or an administrative process (only site plan/subdivision).

            The amount of discretion given the government in those circumstances is dramatically different.

            The legislative process leaves the local government with great flexibility. The administrative process leaves the local government with few inputs.

  • Allan

    If Reston Assoc continues to insist on increases and not practice fiscal management (Reston dues increase by 30 percent in 3 years) then bringing in the additional units should have a positive impact on the fiscal management of the Assoc dues. If on the other hand Reston Assoc can actually properly act as a institution with morals and manage the budget properly then there would be no need to be raising rates by on average of 15 Percent per year then if this is what it take the finally have Reston incorporated into a proper Town or City with proper and responsible government auditing rules and fiscal management then bring it on and lets finally put a end to this irresponsible fiscal mis-management.

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