Compared to the equipment rental company there now, or the CVS pharmacy that almost went there, the seven-story, 101′ tall building proposed by Richmond developer Bob Englander would seem to be just what the city ordered. Retail on the ground floor to enchant pedestrians. Seventy-nine condo units to house potential pedestrians. Tasteful setbacks to keep the sun from a state of permanent eclipse, and wider sidewalks with benches and street trees and bike racks.
Richmond developer Bob Englander wants to rezone this site for a 101′ tall building with a lot of density but no affordable housing. Instead, he’s offered to give $300,000 to the city housing authority.
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But the city Planning Commission voted 4-2 to recommend that City Council deny Englander’s rezoning request. City Council is set to hear the matter at their September 4 meeting, though a final decision won’t come until September 17 at the earliest.
Why would the city deny what it has clearly said that it wants? The rezoning, which would allow Englander nine stories and 87 units rather than a mere four stories and 21 units, appears to come down to affordable housing, that often ambiguous term that, much like the Bible, can be invoked by virtually anyone on any side of the development game.
Some planning commissioners choked on the high-end condos proposed for the building, the type of units a lawyer couple or a wealthy retiree could afford, but probably not that policeman-married-to-a-teacher-with-a-couple-of-kids who’s the poster child of workforce housing—and certainly not affordable to the janitor who’ll be scrubbing the building’s hallways.
"We’re seeing rapid gentrification along the whole stretch of West Main Street," says City Councilor Dave Norris. "And that has the real effect of pricing out people who are not able to afford the type of units that are going out with the these new developments."
After at first making no pledges about cheaper housing, Englander offered two units to be "affordable" to "educators." Later, he changed that to a $200,000 donation to the Piedmont Housing Alliance.
At the Planning Commission meeting, Commissioner Michael Farruggio, a police officer, asked whether Englander would make 15 percent of the housing affordable, the usual amount the city asks for, he said. Englander replied, "If we were to provide 15 percent, we wouldn’t be able to afford to build there. We’ve given what we feel comfortable with giving."
After his rejection by the Planning Commission, Englander has upped that to $300,000, which would be donated to the city housing authority. That money could potentially be used to master plan a redeveloped Westhaven housing project.
On its face, that the city almost demands that a developer pay hundreds of thousands of dollars to address affordable housing might seem like some old Bolshevik practice, akin to telling a grocery store that it can only open if it "volunteers" to allocate 15 percent of its stock to community-beneficial goods like fresh local vegetables or free-range meats. Sure, affordable housing may be a community problem, but why should the developer have to take the hit? Shouldn’t it be split amongst the taxpayers?
The grocery store analogy might be apt at the site plan level, when a developer is turning in final plans for a building. But the difference is that in a rezoning, a developer is asking the city to change its laws in order to suit the project that the developer wants to build. In other words, the developer isn’t just asking for permission to do business—he’s asking for a favor from the city in order to do business.
To help make that favor seem less like a favor and more like a fair trade, the developer can throw in sweet treats to help dispose the city to take a kinder view of a project. Those sweet treats (which aren’t actual sweet treats) are promises to offset the problems the development will create—money for roads, for instance, to help with the new traffic, or land for an elementary school.
The city isn’t used to getting sweet treats, otherwise known as proffers, largely because there isn’t that much city land to develop. The county, however, gets plenty of them, and for years has had a policy that 15 percent of a project should have affordable housing—or it should pay cash on 15 percent of the units, set at about $19,000 each.
While Farruggio mentioned a 15 percent policy in his comments, the city hasn’t put that in writing or otherwise formalized it. "Some say the proffer policy is lacking," says Norris. "That’s not true. The fact is that it’s not existent." He’s sent fellow councilors a draft policy that asks for 15 percent affordable housing or $25,000 cash per affordable unit. With the $300,000 offer, Englander meets that figure. The city attorney’s office is also drafting a policy on proffers.
One trick, however, is that legally the proffers should be voluntary. And setting up a policy might seem to make it a de facto obligation. Indeed, the county Board of Supervisors has passed few if any rezonings that don’t meet the 15 percent policy.
"Any project trying to get around proffers is going to sit dead in the water," says local developer Paul Beyer, via e-mail. "An individual developer can hardly afford the delays this causes, much less the legal showdown it would require to get the project moving again. Proffers are not voluntary in any realistic sense."
Both city and county attorneys say local policies are within legal limits, and both city and county benefited from a law change on July 1 that allows them to ask for proffers to address issues that aren’t directly tied to that specific project—issues such as affordable housing.
What local government can’t do is deny a rezoning only because it doesn’t include certain specific proffers. But it can be denied for "lack of general welfare for the community, lack of mitigating factors and therefore lack of good zoning principles," as Farruggio recommended for the W. Main Street project.
Both Norris and Mayor David Brown acknowledge that evaluating a rezoning without demanding proffers can be a fine line to walk. "Whatever we do, we have to be careful that we don’t have something that’s no longer in the voluntary ballpark but is mandatory," says Brown.
But not all commissioners felt as Farruggio did. William Lucy was one of two votes supporting the project, and he cautioned the city to take the gains in density and design and "not invite more bullets to dodge."
"The question becomes, how do you incentivize the high density if you are punishing it basically with proffers?" says Neil Williamson, executive director of the Free Enterprise Forum. He thinks a 15 percent policy has the inadvertent negative effect of driving prices up for 85 percent.
"’Affordable’ housing is directly related to density," says Beyer, "and as long as our community displays such antipathy toward growth or density, any affordable proffer will be a superficial solution."
With the W. Main project, "it’s bit tricky to balance," says Norris. "The density is good. But the reality is, this is a developer asking for a big favor from the city, quadrupling the density. I think in exchange for that it’s entirely appropriate, if not obligatory, for the city to ask for something in return. But it should go to mitigate the impact on the neighborhood."
For quadrupling the density, City Councilor Dave Norris says, "I think in exchange for that it’s entirely appropriate, if not obligatory, for the city to ask for something in return.
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Englander won’t comment on the fairness of the proffer requests. "We’re happy to make the proffers that we have made and we’re excited about this project and we’re looking to move forward," says Englander. "I’m assuming City Council is going to be amenable to what we’re trying to do for the city, and the ball’s in their court."
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