Waterfront Plan Work Group Gets a Briefing on Legal Issues

Alexandria’s waterfront development has long been tangled in a spectacular set of litigations. It was fitting that the city’s deputy attorney compared the hydra-headed issue to "Bleak House," Charles Dickens’ famous novel characterizing the pains of a slow and arcane legal process.

Deputy Assistant City Attorney Christopher Spera on Wednesday evening outlined the city’s view of some of the legal issues and how they shine on waterfront issues today.

The waterfront settlement agreement is a product of litigation by the federal government in 1972, he explained. “It’s the Alexandria version of 'Bleak House.'”

The federal government at the time took the position that all of the land that had come to be in-fill by landowners or by accretion had expanded the shoreline of Alexandria since 1789.

The federal government said it owned the land. Litigation ensued by the Department of Interior at the behest of the National Park Service, which didn’t like proposed development at the time, according to Spera.

In 1981, the city entered into a federal agreement that resolved ownership of certain parcels of land. “The federal government gave up its claims in exchange for certain easements being placed on property,” Spera told the Waterfront Plan Work Group.

In 1983, there was a separate settlement agreement with the owners of the Robinson Terminal, which is housed on the waterfront and owned by a subsidiary of The Washington Post Co., that set certain density numbers and uses for that property. However, “I don’t want to represent that there is actual consensus between the city and Robinson,” he added.

“To the extent that there’s a dispute, the city’s hope is that through this [Waterfront Plan] we can come to an agreement“ as to what the ’83 agreement means with respect to the Robinson Terminal parcels. Other parcels either settled or didn’t settle, he said.

For example, the Old Dominion Boat Club never settled with the Park Service, he explained. The city has acquired other parcels such as the Beachcomber.

That case reached conclusion in 2010 when a ruling by the D.C. Circuit Court said the federal government did not own the land. “It was clear with respect to the riverbed, owned by the federal government and anything that touches the river bottom [would be] subject to getting permits from the federal government.”

The city believes that there would be four levels of permitting required to undertake some of the waterfront plans—from the Army Corps of Engineers, Virginia, the U.S. Department of the Interior and from Washington, D.C. “because they claim that water as theirs.”

However, because D.C. doesn’t generally want to extend its police and other resources over to Alexandria, Spera said D.C. has approved what Alexandria does as long as it gets the other three permits.

The 1981 settlement also had a commitment to zoning “that made almost everything down there park land,” he said, adding that the federal government sent the city a letter approving Alexandria's actions when Alexandria wrote its 1992 ordinance reducing allowable density.

“There’s some suggestion that zones from the ‘92 agreement could be changed and go back to the park concept. … Our office doesn’t support that approach with that type of spot downzoning” because that “doesn’t go down well” with laws in Virginia, Spera said.

When the city rezoned parcels in 1992, the Robinson Terminal didn’t object. However, its owners sued in 2008 but ultimately did not serve that lawsuit as the city tries to work with them. The city's current Waterfront Plan allows more development at Robinson Terminal North and increases the height limit from 55 to 66 feet.

The work group tried to make some sense of why the 16-year lapse between the ordinance and the lawsuit and was told by the city attorney "that's for someone with a black robe to decide."

Spera explained that the city could get concessions and contributions from developers but “there’s got to be a nexus in terms of what you’re doing and what you’re asking for. There are legal doctrines that apply in every development.”

Work Group member Bert Ely asked if City Council had a greater amount of flexibility, but Spera said, “If you’re only adding a small amount of density, but at the same time you’ve added substandard roads and then you send them a bill for $20 million for roads, what you’re asking for is not in line. … Even if you agree that the development is going to cause traffic, you can’t ask for a new superhighway.”

Spera added that there’s been a sea change at the National Park Service for the National Capital Area. He said the Park Service more recently has taken “more of an urban planner approach than a Smokey the Bear approach to public space,” adding that he believes there’s been a change in perspective from the approach taken in the 1980s and 1990s.

“The fact that we’re in an urban setting. Some of the concepts in '81 don’t apply given the concentration of people and buildings that we have today,” he said, noting that the D.C. chapter of the NPS has effectively integrated an active urban area into a celebration of history with the D.C. government.