COVID-19 legislation cancels Vineyard Square expiration?
By Valerie Cury
In response to the COVID-19 pandemic, the Virginia General Assembly last year passed a bill which extends the approval date of site plans. But the bill didn’t take effect until March 1, 2021. It appears that developers had lobbied for this change, which was introduced by Lynwood W. Lewis, Jr. (D-6) in bill 15.2-2209.1:1. The extension will keep site plans active until July 1, 2022, “or such longer period as may be agreed to by the locality.” Any site plan that was valid on July 1, 2020, it appears could have become valid again on March 1, 2021, even if it might have expired – which is the case with the Vineyard Square project’s site plan and Certificates of Design Approval which expired on Feb. 16, 2021.
At the Purcellville Planning Commission meeting on Feb. 18, Town Attorney Sally Hankins started the discussion by giving an update on the Vineyard Square project and its Certificates of Design Approval.
Knowing that the Vineyard Square project was set to expire, Purcellville Mayor Kwasi Fraser, Council Member Stan Milan, and members of the Planning Commission, have been asking staff for an update on the project; but until the Feb. 18 meeting, they received no information.
The Vineyard Square project, which extends from 130 to 144 N. 21st Street in Historic Downtown Purcellville, was approved by a previous Town Council, for a total of 171,000 square feet of mixed-use space. The six-story plan currently includes 30,000 square feet of retail and 40 condos.
Vineyard Square’s site plan and Certificates of Design Approval had already expired once before in 2016, but the Zoning Administrator at the time, and at the request of the developer to make a zoning determination on whether the project had indeed commenced, made a formal determination that the project had “commenced,” although little work had been done. The project has sat without any significant progress for over eight years, facing strong and sustained public opposition.
Explained Hankins, “A site plan was approved for Vineyard Square in February 2016, and would have been valid for five years. And, if you don’t commence construction within those five years, so it expired this week [Feb. 16, 2021].
“The plan would become void and you would have to recommence the process,” she said. “The General Assembly in 2020, at a Special Session, passed remedial legislation, to provide relief for people because of COVID, and extended by state law, the expiration dates of plans that were valid as of July 1, 2020. And the Vineyard Square application was valid as of July 1, 2020. So that’s all I can say for now.”
However, Hankins went on to say that there is a “legal argument that allows the Town to take a different position that the remedial legislation does not have the effect of extending this particular site plan, and so I need to consult with Town Council, to understand what position they would like the Town to take. It won’t matter unless some kind of action is requested pursuant to the site plan by the property owner. But we should be prepared for that.”
Council Member and Council liaison to the Planning Commission, Stan Milan, asked Hankins “Why was this not explained to the Council months ago, when I have been asking about the status on this? And several other people have been asking as well.” Hankins did not answer.
Milan noted that Council was under the assumption that the Vineyard Square project would expire on Feb. 16, 2021, and “now you are saying in July 2022.”
Hankins replied, “right.” Milan continued, “You said there would have to be significant progress on the project to move forward. I asked you what is significant, and nothing has been significant with this project since 2016.”
Hankins again pointed out that the General Assembly passed a law that “says the validity of your site plan is extended even if you don’t take significant steps in getting it developed.” Hankins said the site plan “will now be valid until July 1, 2022, and then it will expire if it has not been acted upon.”
Chair of the Planning Commission Nedim Ogelman reminded Hankins that the new law is subject to legal interpretation. “So, you said that the Town might argue whether that state decision is applicable?” he asked.
Hankins let the Planning Commissioners know that the legislation hasn’t even taken effect yet, and will not take effect until March 1, 2021. “Yes, in fact,” said Hankins, “the legislation that accomplished this was adopted in the 2020 General Assembly, but the effective date of the legislation was made effective March 1, 2021. In fact, so it hasn’t come into effect yet, and the site plan expired this week [Feb. 16]. So, I think there’s a real case to be made that this legislation does not operate to extend the validity of this particular site plan.
“However, I can tell you that other jurisdictions who have similar circumstances, may choose to handle that differently. I am telling you, there is a legal issue there, and the Town will have to take a position,” said Hankins.
Again, Milan asked why the Town Council wasn’t made aware of this several months ago, when “we were inquiring about the status of Vineyard Square? The Town should have been made aware of this to prepare for some defense to take care of the situation. We have been asking about this forever.” He did not receive an answer.
Ogelman said, “I hear you saying at this point, in fact there is a statute, that has not gone into effect, not enacted, and there are a series of Certificate of Design Approvals that have expired. So, today, you could say, by the fact that the other statute that has not yet been enacted, and is going to be enacted in March – that the Certificate of Design Approvals have expired, period.”
Hankins replied, “yeah.” Ogelman said, “As of today the site plan has expired, and there is no relief as of today, since the other legislation hasn’t been enacted.”
Hankins answered, “As of today, the site plan is expired … that’s right.”
Don Dooley, the new Director of Planning and Economic Development reaffirmed, “If the project has expired, it’s done.”
Ogelman said, “This is and has been an issue of high interest for the citizens of our Town, so I will say echoing Stan’s raising of this issue … to staff, we would like to be kept informed of what is happening with this issue. We want to know what is going on.