Expanded view of Week 12 — Chapter 7 Procedures and Enforcement by Complaint
Chapter 7: Procedures (including zoning enforcement)
By far, the issue most often raised throughout all Zoning Ordinance Rewrite Public Input (2020-2022) is the county policy of “enforcement by complaint.” Draft text for Chapter 7 was not made available for review by the Zoning Ordinance Committee. Staff has stated it will be included in the April 90-day Draft Text. Therefore, this week’s letter will provide background information, explain why Loudoun has complaint driven zoning enforcement, and what it would take to change to proactive enforcement.
Chapter 3: Use-specific Standards (required for zoning enforcement)
Week 8 highlighted the Chapter 3 “Uses.” Also included in Chapter 3 are the Use-Specific Standards (i.e., the regulations for Uses to ensure the health, safety, welfare and protection of property and patrons). Review of citizen issues and complaints over the past 5 years found misperceptions regarding the need for use standards related to zoning enforcement. Although it has been claimed by citizens that the County Zoning Enforcement department “would not” enforce the zoning ordinance, in fact, they “could not” do so due to missing and/or inconsistent zoning regulations to be addressed in the zoning rewrite.
If you prefer to receive an overview of these topics you can read this week’s letter below. However, if you have been involved with and/or provided input for these topics over the past 3 to 7 years (via individual complaints or the zoning rewrite) you will want to review the comprehensive longer version (posted online here).
IMPORTANT NOTE: The information provided this week is based on 2017 case studies I was contracted to prepare that included primary research and interviews with multiple County staff departments. The case study findings were confirmed by and presented to the County Administrator, Deputy and Assistant County Administrators, County Senior Staff, and the former ZOAG advisory group in 2018 and revised in 2021. (Direct links to supporting documentation are provided.)
WEEK 12 |
Chapter 7: Procedures &ENFORCEMENT BY COMPLAINT |
| Let’s start at the beginning: Why does Zoning Enforcement not enforce the text that is in the 2019 Comprehensive Plan? | The 2019 Comprehensive Plan outlines policies and guidelines. As the ZOR Consultant’s Zoning Audit indicated, “Zoning regulations are legal documents that implement plan policies.”
Put another way, Zoning Enforcement can only enforce what is law in the zoning ordinance. If there are missing, inconsistent, or inadequate zoning regulations, then the Zoning Enforcement Department has no means to correct actions. |
| What’s a key finding from the Zoning Enforcement case study? | Not all zoning enforcement issues are the same. The 2017 “Problems with Permits” Case Study shared with Senior County Administration revealed the different categories of zoning enforcement issues: – “Bad Actors” who ignore or violate zoning on purpose, – Poorly defined regulations, that enable or cause loopholes, and – Non-existent / inconsistent zoning regulations between uses that provide no protections &/or no guidelines for zoning enforcement. Numerous examples documented in case studies demonstrated that front-end permits or use applications with poorly defined or inconsistent regulations made back-end zoning violations difficult or impossible to enforce.Without clear and consistent zoning regulations, Zoning Enforcement Staff cannot act to resolve citizen-identified issues. In 2018 and 2021 County Senior Staff indicated that these issues would need to “wait for the new Zoning Ordinance” to be addressed. (And now it’s that time!) |
| Okay, I get the link between zoning regulations and enforcement, but WHY is Zoning Enforcement by complaint? | Since 1992 (or before) the Board of Supervisors instituted the policy of enforcement only by complaint. Zoning Enforcement Staff investigation was approved for proactive enforcement in the Sterling area only for “blight,” or for “eminent peril to life or property.” The BOS renewed that policy direction in 2005, 2009 and 2010 (BOS action summaries can be viewed here). |
| So, what does that mean? | It means the Zoning Enforcement Department responding only by complaint IS doing the job they are legally allowed and have been directed to do by the Board of Supervisors. It also means a zoning application must have been filed, a violation occurred AND a complaint filed before Zoning Enforcement Staff can take action. |
| What would it take to change zoning enforcement to be proactive in areas beyond Sterling? | The study found that changing to proactive zoning enforcement would require: – Policy changes for Zoning Enforcement by the Board of Supervisors, – Procedure and process changes in Zoning Enforcement through the Zoning Ordinance Rewrite (in Chapter 7), – Personnel, budget and staffing increases to adequately meet the needs to provide proactive zoning enforcement, – Improved systems and support* for reporting and access, and – Penalty changes to implement appropriate fines for zoning violations (also in Chapter 7).All of the above findings were included in the case study review to County Senior Staff in 2018 and 2021.* Loudoun Express Request (LEx) system reporting, Loudoun Online Land Application system (LOLA) search capability, Land Management Information System (LMIS/enerGov) remote public access. |
| Longer Version – Why is there still such confusion with noise complaints? – Was my past zoning enforcement ticket used to evaluate changes for zoning regulation changes with ZOR? – What happened to my complaints that were submitted via letter, email, social media or phone call? – Does the LEx complaint tracking system report all complaints? |
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| I submitted a complaint in the past but did not put it in the LEx system.
How can I be sure my issue/input is being reviewed and considered for the current zoning rewrite and not ignored?
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County ZOR Staff have stated they are open to reviewing “specific instances community members want to point out.”
If you, your neighbors, your HOA, or your organization wrote a letter, sent an email, called the sheriff, or made a LEx complaint, ask: If yes, you may want to resend/resubmit your original complaint summary and/or evidence with your 90-day public input to ZOrewrite@loudoun.gov for review by County ZOR Staff as an example for zoning regulation revision. |
| Longer Version – Why is there still such confusion with noise complaints? – Was my past zoning enforcement ticket used to evaluate changes for zoning regulation changes with ZOR? – What happened to my complaints that were submitted via letter, email, social media or phone call? – Does the LEx complaint tracking system report all complaints? |
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| Why is there still such confusion regarding noise complaints? | Most residents are not aware that there are two noise ordinances: – Zoning Noise ordinance (today, Section 5-652-B) and – Codified noise ordinance (offenses against public peace, Ch. 654.02)It’s not clear to residents – Whom they should call (Sheriff? Zoning Enforcement?) – Who performs enforcement (Sheriff or Zoning enforcement), – How noise is measured (different requirements and equipment), and – When enforcement will come (Sheriff when called versus Zoning Enforcement by appointment).Review of the Chapter 5.08 Performance Standards draft text did not address these disconnects. This is a section to watch for the 90-day review. |
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Was my past LEx zoning enforcement ticket used to evaluate changes for zoning regulation changes with ZOR? |
Your past zoning complaints (letters/emails and LEx tickets documenting actual issues caused by poorly defined or missing zoning) should be used as examples of the zoning changes needed to define the front-end regulation requirements to prevent the back-end zoning enforcement issues.
However, because of the reporting limitation with the LEx system, not all complaints have been retained, reported, and/or reviewed. This is the time to monitor the ZOR draft text and look to see if your issue was addressed. If not, then Staff indicated you may resubmit your complaint or request again with your 90-day public input. |
| So, what happened to my complaints that were submitted via letter, email, social media or phone call? | Complaints submitted via social media, calls, letters or emails to federal, state or county elected officials or agencies are NOT entered into LEx unless requested.
– LEx does not consolidated complaint entry and tracking across all sources (calls, letters, emails, social media). |
| Does the LEx complaint tracking system report all complaints? | No. There is no mechanism to obtain a complete and accurate complaint report from all sources via LEx. As of 2017, there was no systems complaint reports process. County reports on complaints included LEx-only complaint tickets that were transferred manually to an excel file for reporting. |
CHAPTER 3 – PART II |
USE SPECIFIC STANDARDS |
| What’s types of regulations are missing or inconsistent across different Uses? | The types of Use-specific Standards that are missing or inconsistent across Uses (without regard for business type) include: Minimum acres, hours of operation, noise, lighting, yard & road setbacks, landscaping & buffering, parking, road access, and quantity of events permitted. |
| Why are there missing or inconsistent regulations? How did that happen? | Many Use regulations were created as “one-off” (one at a time) Zoning Ordinance Amendments (ZOAMs) over the past 20 years, which created a great deal of inconsistency in regulations and performance standards and some public safety issues.
The ZOR Consultant’s Zoning Audit report observed that Use regulations are scattered throughout the current zoning ordinance. This is being addressed via ZOR by consolidating Uses throughout the county into Chapter 3. |
| What’s an example of how inconsistent regulations can be harmful for businesses?? | Let’s use lodging uses as an example. The purpose ZOR and the new Short Term Rentals ZOAM is to create a level playing field for a portfolio of lodging options and businesses throughout the county – from Short Term Rentals on one end, Bed & Breakfast’s in the middle, motels and hotels throughout the county on the other end.
Without consistent, scaled-intensity performance standards, STRR’s could “cannibalize” other business lodging that must comply with stricter regulations (i.e., draw customers from B&B’s), putting some B&B’s at risk. Without regulations, STRRs could also put guests and adjacent residents at risk (i.e., fire safety, traffic, noise impacts, etc.) A similar “portfolio” business review can be applied to tourism low to high-intensity uses, and small vs. large commercial business location uses. |
| What’s an example of a public safety issue? | An example of a public safety issue relates to the permitting of “agricultural” buildings that become event venues or “tasting rooms.” The “Ag barns or buildings” for these uses that host large numbers of patrons are exempt from building code permits, do not require electrical, plumbing, fire safety inspections, and are not monitored by the State Office Drinking Water or Health Department inspections unless a bathroom or kitchen are applied for. |
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I heard there was zoning draft text removed last September after some stakeholders complained.
What happened, what did the text include, and what was the outcome? |
What happened:
That needs a little background. [Note: See “Policy decisions, discussion summaries and transcripts” here for emails and transcripts.] – Prior to being released last August, draft text was leaked to external stakeholder groups and county agencies who found the text objectionable. The Stakeholder groups requested meetings with Supervisors to complain and request the text be deleted. Draft text removed: The deleted draft text can be reviewed here. The draft text provided guidelines for event quantities, size and parking requirements for high-intensity tourism uses that were in line with similar regulations applied to B&B’s and Event Centers. The text for multiple uses had been specifically requested and supported during ZOR 2020-2021 public input meetings, was in line with regulations approved and implemented in a number of other Virginia counties, and would support resolving zoning complaints submitted to the County over several years. Outcome: – At the 10-6-2021 ZOC meeting, the then Director of Planning & Zoning stated: “If ZOC recommends that the text that was removed be put back in, then, yes, the public will see that.” During the 90-day public input review — if you believe the text should be inserted/made visible to the Planning Commission you will need to indicate that in your public input. |
| Longer version:
Rural Specific Use Issues: See Chapter 3 (Week 8) Hot topics |
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| So that I don’t reinvent the wheel, is there a summary of Use-Specific Standards issues available for review before the draft text is released? | Yes. You can find a list of use-specific standards comments submitted to Staff here ZOR-TEXT-INPUT-USE-SPECIFIC-STANDARDS.pdf. This list may be helpful to compare to the 90-day draft text when released. |
| Why was there so much talk about Rural Uses in the past months with ZOR? | The Board of Supervisors planned for Rural Uses issues to be addressed in 2015 with ZOAM-2015-0006 by incorporating revisions recommended by the public and make rural use performance standards equitable. However, the ZOAM changed form over the past seven years. The ZOAM pushed off key objectives several times, with residents being told changes would be made 1) after a new Comp Plan and 2) in a new Zoning Ordinance. Therefore, that time is now. |
| For Rural Uses:
Is there a way to look for the “poorly defined” or missing/inconsistent” current regulations, (as a short cut for Chapter 3 Use Specific Standards during the 90-day review)? |
Yes. County Staff has in the past prepared a matrix that compares Uses and their Standards that focuses on the zoning ordinance goals (not the specific business type). An updated version of Staff’s Rural Zoning Ordinance Comparison matrix has been submitted via the Zoning Ordinance Committee.
Visually, every empty “red” box indicates possible “missing” regulations, and empty “blue” boxes indicate possible “inconsistent intensity” regulation. These are the key Chapter 3 Use-Specific Standards to review during the 90-day public input period to determine if the issues documented and provided to staff in the past 7 to 10 years have been corrected. |
| Longer version: 2017 CASE STUDY SUMMARY – Key findings – Traffic/venue Density Impacts – Volume of Permit types – Volume of complaint processes/contacts – Pros and cons of LEx system – Requirement to identify “complaint” vs. “request for information” |
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| You mentioned a 2017 Case study. What was involved with that? | The case primarily investigated zoning issues related to Rural Uses. ZOAM-2015-0006 was intended to “Make rural use performance standards equitable.” In Sept., 2016 the BOS included in its Strategic Plan the need for “balance between rural economy and ensuring quality of life for residents.”
The 2017 study found that zoning inconsistency and location/intensity impacts were the primary factors impacting balance. A follow-on “Problems with Permits” case study was confirmed with Senior County Admin, Senior Staff, and ZOAG. The findings were included in 2019-2020 Round 1 ZOR input, 2021 Round 2 ZOR input, and an April 2021 Updated Status: “Problem with Permits” to County Administrator and Assistant County Administrators. |
| How does the case study relate to ZOR today? | From review of complaints and zoning regulations by Staff and ZOC, if the zoning performance standards (Chapter 3), and checklists, process and procedures (Chapter 7) are addressed during Zoning Ordinance Rewrite then Zoning Enforcement complaints will be significantly less. |
| Traffic/venue Density Impacts | The 2017 case study demonstrated how to quantify traffic impacts of multiple uses on a site, and multiple uses in close proximity. These factors are not currently considered on a single application basis. |
| Volume of Permit types | There are approximately a dozen different permits required depending on the business use applied for. It is up to the applicant to determine all permit types and proper filing. |
| Volume of complaint processes/contacts | Similarly, residents must also determine the proper process to file a complaint from a dozen types, only three of which are collected via the Loudoun Express Request system. |
| What are the pros and cons of the LEx complaint system? | Although Loudoun Express Request (LEx) is a generally adequate trouble ticket ENTRY system to distribute trouble tickets to Staff, it is a poor ticket closing and REPORTING tool.
The plan was to improve trouble ticket entry, tracking, notification and reporting via enerGov, originally to be released in 2020. The current timeframe for implementation is not confirmed, as well as whether there be any public user interface with enCodePlus? |
| Requirement to identify “complaint” vs. “request for information” | Citizens who enter a LEx ticket or call Zoning Enforcement must identify their issue as either a “complaint” or “request for information.” Residents requesting information will be provided other contacts to call/email directly. Only issues identified as a “complaint” will be acted upon by Zoning Enforcement. |
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