Legal interpretation gone awry?

Legal interpretation gone awry?

 To the editor: 

In public comments at the February 24 City Council hearing on Docket Items 5 and 6, a representative of the developer of 301 N. Fairfax St. said that the “commercial residential mixed use – high density zone was created … to try and incentivize additional residential in certain areas.” 

This seems to be a shaky interpretation of the record. 

While not controlling, the very title of the section that establishes the CRMU-H zone suggests that it promotes a mixture of uses and not for single residential use. I’m told by Alexandrians who were on the zoning task force in the late 1980s that the CRMU-H zone was specifically developed to promote mixed use by awarding extra density only to mixed-use projects. 

Indeed, Section 5-301 of the zoning ordinance says that the purpose of the CRMU-H zone is to permit “… developments that include a mixture of residential, commercial, cultural, and institutional uses in a single structure …” How does Hoffman & Associates read that to mean all-residential? 

Section 5-305 says, for single-use projects, “If a parcel is developed for only … residential use, the maximum permitted floor area ratio is … 1.25.” Hoffman proposes a 100% residential building at 301 N. Fairfax St. The zoning ordinance clearly says they only qualify for 1.25 FAR, not 2.5 FAR. 

Hoffman arrives at the opposite conclusion by asking us to ignore the essential purpose of the CRMU-H zone and Section 5-305 (A). Instead, Hoffman wants us to skip down to section 5-305 (C) which says that, “If at least 50 percent of the floor space of the proposed development is for residential use and if the commercial use within such a development does not exceed a floor area ratio of 1.25, then, with a special use permit, the maximum permitted floor area ratio may be increased to an amount not to exceed 2.5.” 

I think Hoffman has three problems. First, because Section 5-305 (A) is controlling, then 5-305 (C) becomes moot. Second, Hoffman claims that the title of Section 5-305 (C) would not say “or residential” if it only allowed a 2.5 FAR for mixed use projects. But statutory interpretation is about the content of the section, not the title of the section, and the content of this section makes no such statement about residential-only use. 

Third, even if this were not so, the clear implication in the language in the body of (C) is that there must be some essential mix of commercial and residential use. Because there is no such mixed use in Hoffman’s 301 N. Fairfax St. proposal, Section 5-305 does not permit their claim to a hyper-dense 2.5 FAR. 

I think Hoffman’s interpretation of the zoning ordinance is wrong. I think the city has been blissfully misinterpreting its own zoning ordinance, apparently for years. Instead of resolving this at the Planning Commission stage, the city has relied on questionable legal analysis, and forced us to sue. The court will now decide. 

-Scott Corzine, Alexandria