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June 18, 2003 Land Use Law Report Page 103
<br />Briefly Noted
<br />FAIRFAX COUNTY, VA., SUPERVISORS
<br />gave . the go -ahead June 16 for a new residen-
<br />tial/office /commercial complex in the Tyson's Cor-
<br />ner area, touted as the future downtown of Fairfax.
<br />The complex, which will feature nine high -rise
<br />towers , four of them 30 stories tall, will be built
<br />between two existing shopping malls and alongside
<br />a proposed metro station. The station would be one
<br />of four to be built along a proposed Metrorail ex-
<br />tension to Tyson's Corner, and eventually, Dulles
<br />International Airport. There is one fly in the oint-
<br />ment, however. The rail extension has not been
<br />funded by Congress. Although the supervisors
<br />voted 8 -0 for the project, one, Stuart Mendelsohn,
<br />said, "the great fear is the density comes and rail
<br />never comes." Developer Lerner Enterprises is the
<br />first to take advantage of a new county policy en-
<br />couraging building near public transit facilities.
<br />Because of the future metro stop, the project got a
<br />density bonus raising the allowable square footage
<br />from 1.9 million square feet to 4.1 million square
<br />feet. Lerner also tripled the amount of space allo-
<br />cated to housing under another county policy in-
<br />tended to encourage construction of housing rather
<br />than offices. The deal has an escape clause. If
<br />funding for the Metrorail extension is not a place
<br />by 2005, the supervisors can rescind the density
<br />bonus.
<br />THE U.S. SUPREME COURT declined this
<br />week to take an appeal from the 9th U.S. Circuit
<br />Court of Appeals' decision in Esplanade Proper-
<br />ties, LLC v. Seattle, No. 02 -1304. The lower court's
<br />decision is discussed in LULR, Oct. 9, 2002, p.
<br />163. A developer denied permits to build houses
<br />over tideland in Elliott Bay sued the city for a
<br />regulatory taking. The appeals court ruled that
<br />Washington state's public trust doctrine, which
<br />vests ownership of the shores of navigable waters
<br />in the state, precluded private construction over
<br />tidelands. Because the developer bought its prop-
<br />erty subject to the state -law limitation on what
<br />could be done with the land, there was no taking,
<br />the court said. The developer never had any right to
<br />use the tidelands in a way that would substantially
<br />impair the public trust, it concluded.
<br />VISITABILITY: The Escanabia, Mich., City
<br />Council unanimously approved an ordinance June 5
<br />authorizing a $150 cash payment to residents who
<br />take steps to make their homes more accessible to
<br />persons using wheelchairs. Accessibility advocates
<br />say the ordinance is the first of its kind. To be eli-
<br />gible for the payment, new single - family dwellings
<br />would have to provide at least one wheelchair -
<br />accessible and trends entrance, service by a "visi-
<br />table route." First -floor doorways would have to
<br />have a minimum clear opening of at least 32 inches
<br />and be fitted with lever -type hardware. First floor
<br />hallways would have to be at least 36 inches wide,
<br />and first floor bathrooms must have design features
<br />to accommodate handicapped persons.
<br />IN OTHER VISITABILITY NEWS, a trial
<br />court judge in Tucson, Ariz., last week upheld the
<br />constitutionality of the Pima County Inclusive
<br />Home Design Ordinance. The local home builders
<br />association reportedly will appeal the decision to
<br />the Arizona Court of Appeals.
<br />HOUSING STARTS ROSE 6.1 percent in
<br />May, the U.S. Commerce Department reported
<br />June 17. Single - family starts were up 1.5 percent,
<br />and the volatile multi - family market posted a 29.2
<br />percent gain. Building permits were also up, rising
<br />3.7 percent over the May pace' *'National Associa-
<br />tion of Home Builders President Kent Conine
<br />commented that bad weather in April slowed
<br />down construction, and it is likely that continuing
<br />poor weather in the East and parts of the Midwest
<br />and West may have slowed construction in May as
<br />well. That suggested, he said, that June also may
<br />see solid gains. By region, starts were up 14 percent
<br />in the Midwest, 7.4 percent in the South and 0.7
<br />percent in the West. Starts in the Northeast fell 1.3
<br />percent.
<br />CONTRA COSTA COUNTY, CALIF., su-
<br />pervisors passed an ordinance June 3 that would
<br />respect restrict the ability of "big box" stores to op-
<br />erate full- service grocery stores. The ordinance en-
<br />acted by the San Francisco Bay area suburb pro-
<br />vides that stores over 90,000 square feet in size
<br />could devote no more than five percent of the floor
<br />area to the sale of such non - taxable items as gro-
<br />ceries. A regional representative of Wal -Mart, Amy
<br />Halley Hill, who spoke at the hearing to consider
<br />the ordinance, commented, "this is clearly aimed
<br />at Wal- Mart —make no mistake." Wal -Mart is cur-
<br />rently fighting a similar ordinance in Tucson, Ariz.
<br />Hill said the company will explore its options, in-
<br />cluding possible legal action or supporting a refer-
<br />endum to overturn the ordinance. Supporters of the
<br />ordinance charged superstores often drive tradi-
<br />tional grocery stores out of business.
<br />© 2003 Business Publishers, Inc. All rights reserved.
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