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Developer Fails To Skirt Road Proffer

BY Dusty Smith

(Created: Friday, January 19, 2007 8:32 AM EST)

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Loudoun Intertech Development Corporation, or LIDC, failed in its attempt to persuade the board of supervisors last week that it should not be held responsible for a $2 million road proffer it made in the early 1990s. Supervisors appeared to be surprised at the ease with which they were able to find in favor of the zoning administrator's ruling.

The attorney representing LIDC said the developer had no idea there was an outstanding debt to the county because the state constructed the projects the proffer was intended to cover. LIDC has since sold most of its property and those new landowners are legally responsible for the shortfall.

"It came as a shock in 2006 that we were asked to pay money on this proffer," said Andrew Burcher, LIDC's attorney, referring to an October 2006 letter requesting the money. The development of the land triggered the payment. Burcher presented an earlier letter from a zoning administrator that stated that portions of the agreement had been fulfilled.

The proffers call for construction of two half-mile segments of a third eastbound lane along Rt. 7 in front of the property, just east of Ashburn Village Boulevard. In addition, the proffers lay out the financial component of those projects.

The Virginia Department of Transportation began constructing the projects identified in the proffers, which were approved as part of the Ashbrook development along Rt. 7 in 1996, just a few months after the project was approved. VDOT finished its work in 1998.

LIDC then sought a determination about its proffer requirements. A letter sent to the developer stated that two proffers had been completed, namely the two that specifically identify the road projects. However, the letter does not refer to the third requirement regarding the funding for those projects. County zoning staff argued that the letter Burcher presented was not an official determination.

Supervisors were puzzled about LIDC's position, which seemed to be clear to them.

"This was clearly a proffered condition," said Supervisor Lori Waters (R-Broad Run). "I see nothing that shows me the board of supervisors should overturn the zoning administrator. The public has not received their benefit and the public is due $2 million, in my opinion. Letting a developer off the hook for a proffer is offensive."

Burcher said he would need more time to dig up the necessary evidence to prove his client's case.

"I'm arguing that there was evidence in the record that this was completed and there was nothing else [required]," Burcher said.

Burcher asked the board, which was functioning as a quasi-judicial panel in the appeal, to forward the item to a Transportation/Land Use Committee meeting so he and his client could do more research and because it could mean more money for the board, ultimately, he said.

"By allowing us to go to committee, I believe you stand a better chance of collecting more of the money," he said, pointing to the costs and risks of a legal battle.

"I sure don't understand that logic," said Supervisor Stephen J. Snow (R-Dulles).

Supervisors said they did not believe that LIDC really felt it did not owe the county money for the road improvements. Several supervisors, even having listened to others ask the same question, asked Burcher to again explain why LIDC believes it does not have to pay the proffer.

"What's obvious to me is you do not want to honor your commitment," said Supervisor Bruce E. Tulloch (R-Potomac). "We let you develop in this county. This is just in really poor faith."

Tulloch accused Burcher of sounding "like a guilty man who's done a crime and wants forgiveness."

"I will be looking for all monies due," Tulloch said.

While supervisors sympathized with those who purchased property from LIDC, County Attorney John R. Roberts said the county could do little to force LIDC, rather than subsequent landowners, to pay. LIDC retains only about 41 acres of its initial 277-acre tract. Anyone who purchased land from LIDC is legally responsible for any proffers associated with the development of that land. The issuance of some zoning permits has been delayed because of the unpaid proffer.

Roberts said current owners would have to take the matter up with LIDC.

The board voted unanimously to uphold the zoning administrator.

The next level of appeal from the development and the landowners would be to Circuit Court.

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Reader Comments
The following are comments from the readers. In no way do they represent the view of Leesburg Today.
Total Comments: 25 comment(s)

Lori Fan wrote on Jan 24, 2007 3:16 PM:

" Is everyone else tired of these ridiculous attacks on Lori Waters? Where's the outrage about Dale Polen Myers, Snow, and Tulloch? Where's the calls for independent investigations to prove these poor people's innocence? The anti-Waters propaganda will not resonate no matter how much you keep pushing it. "

trampling of rights? wrote on Jan 24, 2007 1:50 PM:

" Ms. Waters completely trampled the rights of all the landowners with less than 20 acres in western loudoun, just fine thank you. I am not happy about her insistence to downzone western loudoun so she could get support from the western board members to Up Zone Ashburn. She didn't take much from me, just MOST of the value of my land (which she seems to think is supposed to be a park for my neighbors)...and was happy to give the value of my rights to someone IN ASHBURN....thanks but no thanks, I hope they VOTE HER OUT. "

total hypocricy wrote on Jan 24, 2007 10:55 AM:

" Ms. Waters left Dale Polen Myers and went onto greener pastures, with the uber rich, PEC types of western loudoun. She thinks one house per 50 acres is too much for western loudoun--must protect those ancestral homes from suburban big box million dollar homes. But she sees no problem with cramming in an extra thousand plus houses on 300 acres in Ashburn, with millions of unnecesary retail space...she's no angel. What did she do to get Burton and Kurtz to support Loudoun One--doesn't take a genius to figure that one out. Time for a change. "

Dean Settle wrote on Jan 24, 2007 9:54 AM:

" Ms. Waters voted two or three votes at the behest of Dale Polen-Myers phone calls to her home. After she got her grounding, and stopped accepting the phone calls on how she should vote, Lori was just fine. She's gone on to actually take tours and sit down with the rural economy and has made more effort than any other member to actually understand our concerns. We've forgiven a couple of bad votes, because what she has done since those votes far outweighs any damage she did at that time. Why do you think that the "builder's Board" wants her gone so bad? She has been a force for the taxpayers since her reversal, and it really bugs them that she often stops the trampling of the residents of the county. "

answers wrote on Jan 24, 2007 8:27 AM:

" Ms. Waters commented earlier on this site with a post. Ms. Waters, come back, we need answers. Did you vote to upzone Myers property to help out Dale Polen Myers financially as payback, as the Washington Post suggested? We need an answer. if not, was the upzoning justified? and how? "

concerned citizen wrote on Jan 23, 2007 5:23 PM:

" Mr. Editor, how long to we have to listen to these people rant about Lori Waters? I guess this is just going to go on and on because niether side is going to change. "

Snow comment wrote on Jan 23, 2007 10:33 AM:

" Mr. Snow's problem is he is too honest. He gives his word and stands by it. He is loyal to his word. He is no chameleon. He has strong core beliefs that are unwavering. If you don't stand for something, you fall for anything. He stands for a lot, that is the best our country has to offer, and the criticism of him is pure hateful politics. It is a shame that the Washington Post stooped to publishing a personal email that he wrote to a close friend, to try to smear him with gossip instead of true fact. Shame on you Washington Post! We are lucky to have such a courageous man fighting for our county, and the things he believes in. "

wash post wrote on Jan 23, 2007 9:42 AM:

" The first Washington Post article suggests that Ms. Waters voted to upzone Dale Polen Meyers' farm as payback for Ms. Meyers helping Ms. Waters to get elected....not sure how Ms. Waters gets away with her better than you attittude? then she votes to take away longstanding western rights to jam more houses in Ashburn...hmmmm. Time for a change. "

Loudoun Voter wrote on Jan 23, 2007 9:35 AM:

" Pablum: Please provide the quote where the Post calls Lori Waters juvenile - it's from Steve Snow in a referenced email. Please work on your reading comprehension. "

review wrote on Jan 23, 2007 8:24 AM:

" Pablum: Staton, Clem and Delgaudio were not even named in the Washington Post "blockbuster" articles, which called Ms. Waters "juvenile." Snow is not accused of anything illegal in the articles. There is innjuendo about influence and impropriety, but no facts of wrongdoing. So it is ok for Kaine to take a nearly half million dollar campaign contribution from an individual who is the head of PEC and then appoint that individual state transportation czar, but it is not ok for developers lumped together to contribute a lesser amount combined to all local and state races? The Washington Post is not a fair and balanced paper if you ask me. Kaine makes our board members look like choir boys, and that is the truth. "

Loudoun Voter wrote on Jan 22, 2007 11:31 PM:

" The Post did not report that she is juvenile, can you read? Steve Snow said that. I'd love to see a head to head matchup of those two and see who comes out on top in votes. Does Snow top 20%? Does he do better than the 38% the marvelous Mick Staton received? "

Not a fool wrote on Jan 22, 2007 9:20 PM:

" I would appreciate it if Ms. Waters and “concerned citizen” did not treat the rest of us like we are fools. Concerned citizens tosses a soft ball question at Ms. Waters so she can talk about her accomplishments. Concerned citizens spends every waking moment talking about how much he/she thinks Ms. Waters is the only person on the board with any morals. Yes she has a lot of morals voting against every county employee getting a raise and then voting herself one. I read the post story. I did not see any wrong doing on the part of Jack Ryan. Maybe we can have a GOP leader who believes the whole county should move forward and not just someone who votes her own interest. "

Pablo wrote on Jan 22, 2007 6:39 PM:

" Hey review, sorry I wrote before the big blockbuster reports by the Wash Post. If Snow, Staton, Tulloch,Clem and DelGaudio were smart, they would leave town now. I "hear" that a big bomb is about to be dropped that could make their new address somewhere near Leavenworth,KS! "

review wrote on Jan 22, 2007 11:59 AM:

" Pablo, or should I say pablum! I don't think it is fair or accurate to say ms. waters is the "only one" to review rezoning applications! that is pure fantasy! Mr. Staton is by far and away the most detailed oriented on the Board, and maybe Ms. Waters' attack crowd are jealous of his ability to read and understand everything! I don't always agree with Mick Staton, but no one can say he does not read EVERYTHNG and STUDY it all seriously. "

Sue wrote on Jan 22, 2007 10:38 AM:

" I don't think it's helpful to attack Ms. Waters in this forum. However, the County has been slow and/or negligent in ensuring developers follow through on their commitments. Kirby Bowers, as County Administrator, should also be proactive in getting a proffer mgr in place. These developers are destroying Loudoun and laughing all the way to the bank. "

votes wrote on Jan 22, 2007 8:34 AM:

" Burton and Kurtz's votes on Loudoun One are very out of character. The only rezoning they have ever supported is this one--after Ms. Waters was the only republican to support the downzoning...To me, that is just incredible and speaks volumes. I would like to see each member vote his conscience on each vote, not trade votes, and stop with potshots. We need serious, fair, meticulous, mature and respectful politicians, not vote trading, ego maniacs, whose best attribute is taking pot shots. It is unfortunate that the Washington Post reported that she was "juvenile" but the fact is, that is how she sometimes acts, on very important issues. Ms. Waters is under fire for good reason. She is not fair or effective. "

concerned citizen wrote on Jan 21, 2007 11:34 PM:

" 'blame everyone else' is unintentionally hilarious! Read the big Washington Post story to see why Lori Waters " cannot work with the majority on the board" - she's the only one not in the pockets of someone else. As Snow's email says, the majority had to ostracize her - so who should get the boot? "

Pablo wrote on Jan 20, 2007 10:22 PM:

" Lori Waters is the only member of the GOP BOS who has the cajones to actually review the piles of zoning and rezoning and development plans and votes on what she thinks is fair. This is the directo opposite of "Clem's Clowns", aka Tulloch, Snow, Delgaudio and Staton! November 07 can't come fast enough... "

Waters Fan wrote on Jan 20, 2007 12:10 PM:

" Lori Waters has led on plenty of issues. If you want to talk about dead weight, we've got plenty of other candidates more qualified on this board, the "majority" of which will not be around after the next election. "

blame everyone else wrote on Jan 19, 2007 10:51 PM:

" Lori Waters is good at blaming others, and a true leader would convince others to do the right thing, not just throw pot shots. She is a big part of the problem on this board. She cannot get along well enough to get things accomplished. She is just dead weight if she cannot work with the majority on the board. "

concerned citizen wrote on Jan 19, 2007 7:11 PM:

" "county jobs" sounds like yet another Jack Ryan / Dale Polen Myers hitman. Lori Waters is only one vote on the board. The "leadership" is provided by the VICE Chairman Tulloch, who with his other Republican cohorts can block anything they want that doesn't please their developer backers. "

county jobs wrote on Jan 19, 2007 3:21 PM:

" no one wants to work for the County and be jerked around by this schizophrenic board...I wonder why the position isn't filled? Ms. Waters seems to think that her only responsibilty is to make a motion, not to get anything actually done..sad case of I told you so, yeah, you told us alright, but what did you do for us? nothing but play games with words, posturing posturing posturing but not getting the job done. "

Lori Waters wrote on Jan 19, 2007 12:24 PM:

" To address concerned citizen's remarks, yes, it is time to do more in tracking proffers, which is why I made the motion last year during the budget to create a proffer manager position. Unfortunately, the position has been advertised, but not filled. "

a volunteer wrote on Jan 19, 2007 11:34 AM:

" It is a shame that the BOS did not have the same spine to insist the Fire/Rescue proffers be upheld. We would not be in this death spiral of a Frie/Rescue tax district and the concurrent (FY 2006) loss of revenues from the cuts the BOS made in company contributions (the proffers that were not paid, nor honored, nor upheld). "

concerned citizen wrote on Jan 19, 2007 10:34 AM:

" Does anyone else think it is time for a county office responsible for tracking developer proffers and making sure they are fulfilled in a timely manner? "



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