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Minutes
BOARD OF ZONING APPEALS
MINUTES
PUBLIC HEARING
December 19, 2007
The Board of Zoning Appeals held four (4) advertised public hearings in the Council Room of the Vienna Town Hall, 127 Center Street, South, Vienna, Virginia, on December 19, 2007, beginning at 8:00 PM with Donald Chumley presiding as Chairperson. The following members were present: Marshall Potter, Gregory Haight, Robert Dowler, Robert Petersen, Charles Brewer, and Peter VanderNat. Also attending and representing the staff were Gregory M. Hembree, Director of Planning and Zoning, and Julie A. Morris, Planner. Jennifer M. Murphy, Board Clerk was absent.
Ms. Holly Chu, Director of the Department of Public Works presented a report regarding the Towns leaf collection and mulching operations that had also been presented to NEVCA citizens group.
Mr. Brewer asked if communications were improved with the residents who neighbor the Town-owned facility. Ms. Chu answered yes, explaining that a copy of the Resident’s Guide to Mulch Operations was mailed to all properties that are adjacent to the mulch site. It was also provided to the NEVCA Community Association as well. Mr. Brewer asked for the timeframe of that mailing. Ms. Chu answered that it was mailed out before October 1st, which is the beginning of the leaf-collecting season. Mr. Brewer asked how long mulching operations have been going on. Ms. Chu answered that they began collecting leaves later in October. The grinding machine was put in place at the beginning of October where it sat idle for approximately three weeks. The Town began collecting leaves for deposit at the site while grinding at the same time. Mr. Brewer asked if the process had been going on approximately five to six weeks. Ms. Chu answered approximately five to seven weeks. Mr. Brewer asked if the Town has received complaints regarding noise. Ms. Chu answered no.
Chairperson Chumley thanked Ms. Chu and her staff for their efforts. He stated that it proves to him that the Town does listen to the concerns of its citizens. They will do what can be done to satisfy their needs.
Mr. Hembree added that he would be involved in reviewing the operation. He will keep the Board updated as to what is happening on a continuing basis.
Chairperson Chumley asked Ms. Chu if there is anything that they can do to adjust their schedule dependant upon the weather. Ms. Chu explained that they do try to be fair in the timeframe for leaf pick-up. The Town rotates the route every year collecting in the South side for two weeks and then collecting in the North side for two weeks. The South side is currently finished and collection efforts are now focused on the North side of Town. Next year they will begin with the North side of Town. She has received complaints from citizens who did not want to bag their leaves or did not read the Town calendar that indicated the dates that they had to have their leaves at the curb by. She stated that she is sensitive to their concerns. They are currently reviewing their process and procedures for future leaf pick-up seasons. She stated that she is open to any comments and/or suggestions from the public. She asked that any comments or suggestions be emailed to her personally.
Chairperson Chumley thanked Ms. Chu for her comments. There being no further questions, Ms. Chu was seated.
Ms. Hembree noted that Town Planner, Julie Morris, would be assisting the Board at tonight’s meeting. He stated that Board Clerk, Ms. Murphy is absent due to the birth of her son. She will resume her Clerking duties in January. Until then Ms. Morris has kindly agreed to fill in while Ms. Murphy is away. Chairperson Chumley thanked Ms. Morris for sitting in at the meeting.
Chairperson Chumley wished everyone a happy, joyous holiday season and hoped that the New Year would be good to everyone.
ITEM NO. 1:
Request for approval of a variance from Sections 18-24D and 18-140 of the Vienna Town Code to retain an accessory building situated within the required setback area adjacent to a non-conforming dwelling located at 213 Nutley Street, NW, in the RS-12.5, Single-Family Detached Residential zone. Filed by Ramsey E. Zacharia and Laura L. Lee, owners.
Ms. Laura L. Lee, owner, was sworn in to speak. Ms. Lee thanked everyone for taking the time in discussing the matter. She stated originally that they had wanted to extend their existing carport in order to house two cars. They spoke to staff to enquire about a garage. They were told that it would not fit within the allotted space. They then decided to extend the roofline to house two cars, which would be sufficient. She submitted photographs of her property for the Board to review. The first page shows the carport with the extension and the shed that is located behind the carport. Page two shows the plat survey and locations of the old and new sheds. After speaking to staff she misunderstood the term “principal structure.” It was her understanding that the shed would have to be located so many feet from the house, when in fact the term “principal structure” included the carport. She stated that they had moved the shed directly behind where the shed had originally been located, which could be argued that the shed is farther than where the previous shed was set.
Ms. Lee stated that after several months of discussion with Mr. Hembree and Town Attorney, Mr. Steve Briglia, it was determined that they needed to make a variance request of the Board. She stated that they did try to conform to all of the Town Code rules and regulations with respect to size and distance from the neighboring property. The issue is that the shed sits too close to their own house and not the property line. She stated that they had inquired into attaching the shed, making it a part of the house but because it is a shed, it does not meet Town regulations. The reason that they are unable to just move the shed is that they spent a lot of money in pouring a concrete slab and had the shed custom built for the location. They tried very hard, putting a lot of thought and time into the project trying to make sure that the shed would be nice matching the house and not encroaching upon their neighbor’s property. They recently replaced the windows and siding on the house trying to improve their home. The property is an odd shaped lot limiting the location as to where they feel that they could put the shed. Cost for moving the shed would be approximately three to five thousand dollars, which did not include the cost for removing the concrete slab that they originally had poured.
Ms. Lee stated that they have spoken to their neighbors. The next-door neighbor has expressed some reservations with it. She noted that they are not on the best of terms with them. Chairperson Chumley asked where the neighbor is located. Mr. Hembree answered lot 5. Ms. Lee noted that the shed is set a good distance away from that neighbor’s property.
Mr. Petersen noted for the record that lot 5 is 445 Windover Avenue, NW.
Ms. Lee asked that the Board grant her permission to keep the shed in its current location as they did try to meet all of the requirements of the Town Code and build something nice that would improve the property. It was an honest misunderstanding. Their house is the only house that would be adversely impacted.
Mr. Brewer asked staff if the determination of the “principal structure” is a new discussion. Mr. Hembree answered yes, that it was as a result of this discussion. The Town Code definition for a carport states, “is any space outside the building and contiguous thereto.” So, he could understand how they may have been confused. He stated that they did have several conversations both in the office and onsite at their house. It could have been construed that a carport is a different animal than the principal building, which is why they sought the opinion of the Town Attorney. Mr. Brewer asked if, during those discussions, if he had been aware that the shed would touch the carport. Mr. Hembree answered that he was not aware that the shed would touch the carport until he saw it out in the field. It was his understanding that the shed would be located back away from the house. Upon looking at the definition of the term “principal building,” which reads, “a building which is considered the main or principal use of the lot on which said building is located.” That does not help with the carport issue either, which is why he suggested taking it up with the Town Attorney for discussion so that they would not have the same issue again in the future. It is unfortunate that this applicant is before the Board because of what’s potentially a confusing issue by virtue of the language in the Town Code.
Mr. Brewer asked if the extended carport sits at the minimum required 10 feet from the adjoining lot. Ms. Lee answered yes. Mr. Hembree agreed. Mr. Brewer stated that, according to the lot survey, the shed looks to be sitting more than 10 feet from the adjoining property. Ms. Lee answered yes. Mr. Brewer asked if the new shed adds 144 feet to the lot coverage. He asked if there were any issues with the lot coverage. Mr. Hembree answered no. Lot coverage has been calculated at 16.3%. Mr. Brewer stated that he does pass by that intersection frequently and noted that the 445 Windover, NW property does have a lot of foliage on the Nutley Street, NW, side. He asked if that were the case between the two properties. Ms. Lee answered no, as they have just cut it all back. She explained that there were a bunch of weeds growing there. They may install a fence in the future. Mr. Brewer asked if they trimmed only on their property. Ms. Lee answered yes.
Mr. Haight stated that upon reviewing the Town Code, the language referring to a garage states that when not considered an accessory building it considers the garage a part of the principal building. Mr. Hembree agreed. Mr. Haight asked if that is because it specifically states so. Mr. Hembree agreed. Mr. Haight stated that it does not state so with respect to carports. Mr. Hembree agreed, stating that the idea that a carport could, at some point be enclosed as part of the principal building. Mr. Haight stated that it seemed to him, under statutory construction, that a carport is not considered a part of the principal structure. He stated that Mr. Briglia, who is a very fine, learned Attorney, has made a determination to the contrary; he asked if that is binding upon the Board of Zoning Appeals. Mr. Hembree answered no, stating that as a Board of original jurisdiction they can make their own determination. Additional discussion followed.
Mr. Dowler asked the applicant when they enlarged the carport if they had a new slab poured. Ms. Lee answered no, only for the shed. Mr. Dowler asked if they have ever received any complaints from the neighbor regarding runoff. He was referring to an email sent to staff regarding concern for runoff at the applicant’s property. Ms. Lee answered no, stating that this is the first time. She stated that she had just visited with them today.
Chairperson Chumley asked staff if the size and/or shape of the lot would have any bearing on the applicants requiring a variance. Mr. Hembree answered no; noting that there is one nonconforming condition existing on the property, which falls within “housekeeping.” If the Board decides to move forward with the request they would need to deal with the 14.7 foot existing left side-yard setback. The width of the lot pinches it, so that further back there is a large backyard. He noted that theoretically the applicant could place the shed someplace else on the lot.
Mr. Dowler noted the electrical box on the property and asked if there is an easement. Ms. Lee answered yes. Mr. Dowler stated that the survey does not indicate that there is an easement. Mr. Hembree stated that it is probably an “easement-by-prescription” as it has been there so long.
Mr. Petersen asked for a description of the other shed that is shown on the survey located near the electrical transformer. Ms. Lee answered that it is a pre-purchased shed that is really old. They plan on getting rid of it.
Mr. Brewer noted that the lot survey does not show the Green Hedges School as one of the adjoining properties. He asked if they have been a good neighbor. Ms. Lee answered yes.
Chairperson Chumley asked staff if there are any other issues with respect to water runoff that were raised in the email submittal to staff. Mr. Hembree answered that they have testimony from the applicant regarding the question noting that there are other water issues from around the other side of the property but it is not germane to the discussion this evening.
Mr. Potter asked if the applicant had consulted with anyone else besides Mr. Hembree on the issue. Ms. Lee answered the Town Attorney. Mr. Hembree noted for the record that she did discuss the issue with Town Zoning Inspector, Frank Simeck, who also met with them in the field. Mr. Potter asked who installed the slab. Ms. Lee answered that she had her yard person install it.
There being no further questions or testimony the public hearing was closed.
ITEM NO. 2:
Request for approval of a conditional use permit for the continued use, the construction of additions, and the renovation of the Vienna Elementary School, 128 Center Street, South, and in the RM-2, Multi-Family, Low Density, PR-Park and Recreational, and C-2, General Commercial zones. Filed by John Souser, PE, Adtek Engineers, agent for Fairfax County Public Schools, and the Mayor and Town Council for the Town of Vienna, owners.
Mr. Hembree noted for the record that on Monday night the Mayor and Town Council considered part of the components of the school property. It is a parcel that has had a school on it for 135 years. The applicants have been in discussions with the Town staff for about a year. He noted that the major issue in the plan review process is that they own the parcel located on either side of an existing street. That is why they ended up with three separate agenda items, two of which were heard by the Mayor and Town Council on Monday night. The PR-zoned piece, specifically the ball fields, requires a public hearing to change any component of the site plan. A sidewalk and several storm drainage pipes run across the PR zoned portion that needed to be amended in conjunction with the main school tract which is located on the left side of the site plan. The Planning Commission had some concerns about process and any precedent setting aspect. The Town Attorney and staff spent many hours determining how best to deal with it and in the opinion of all a combined site plan seemed to make the most sense. Mr. Hembree indicated that there are a number of unique factors that come into play and that Mr. John McGranahan, will address them in more detail.
Mr. Hembree explained that the Mayor and Town Council reviewed all of the site plan and site plan modification components first. They approved the first piece by a vote of 6-1, the second piece for the school itself, by a vote of 7-0. The Board is to review the number of uses associated with the school and the conditional use permit portion. Tomorrow night the Board of Architectural Review will review the exterior elevations and proposed signage. He noted that this is one of the most complex applications that he has ever worked due to the existence of the fifty-foot right-of-way known as Locust Street, SE.
Mr. Dowler asked if the Board is reviewing lot coverage. Mr. Hembree answered no. Mr. Dowler asked if they are concerned with the merging of the site plan modifications. Mr. Hembree answered no, explaining that the Board is only to review the conditional use portion of the application. He explained that the Mayor and Town Council are responsible for the merging of parcels and site plan modifications, which have been approved.
Chairperson Chumley asked who owns the property. Mr. Hembree answered that the Town of Vienna owns the right-of-way. The Mayor and Town Council act as representatives on behalf of the Town. There is a consent agreement that has been supplied to the Board in their packets that indicates that they agree to become a part of the application. He stated that the school itself is owned by Fairfax County public schools and the ball fields located to the right. The Town owns the public street right of way located in the middle.
Mr. John McGranahan, attorney with Hunton Williams, representing the applicant, Fairfax County School Board, came forward to present. Mr. McGranahan stated that it is a complicated application but only with respect to the site plan modification issues, which were addressed Monday night by the Mayor and Town Council. With respect to the conditional use portion, the Planning Commission recommended approval unanimously because it is a school. They are not changing any of the use.
Mr. McGranahan stated the Town, the PTA, and the students are very excited, as it is a brick and mortar addition. It will allow for the elimination of trailers although there will be two temporary modular classrooms during construction. Upon completion they will be removed. Mr. McGranahan proceeded to present the proposed additions to the building. Improvements include expansions to the Library, Cafeteria, Administrative office, and Music Departments. He noted the locations of the two temporary structures while construction takes place. The entire building is being renovated as a part of the project. Upon completion of the project the temporary structures will be removed and the play area will be resurfaced. They are adding approximately 15,000 square feet in addition. With the renovation/improvements, the bus loop and the Kiss and Ride parking loop will be separated.
Mr. McGranahan explained that the use has been in place since 1872. The building has been in place since 1923. Because the building has been in use at the site prior to the Zoning Ordinance there has never been a conditional use permit approved for the site. The use is not changing they are just trying to bring the site in to conformity.
Chairperson Chumley asked if they expect the student population to increase. Mr. McGranahan answered no, explaining that with the improvements the capacity of the school will be for 400 students. He did not believe that there are currently 400 students and are not expecting growth in the student population. Fairfax County schools are beginning an all-day kindergarten program. The renovation and expansion will help to facilitate that program. He noted that there is also community use with respect to Caffi and Waters Fields.
Mr. Dowler asked if the activities and hours recommended by the Planning Commission were acceptable to the applicants. Mr. McGranahan answered yes.
There being no further questions or testimony the public hearing was closed.
ITEM NO. 3:
Request for approval of a variance from Section 18-33C of the Vienna Town Code to construct a front porch beyond the required setback line on property located at 354 Holmes Drive, NW, in the RS-10, Single-Family Detached Residential zone. Filed by Matthew Christensen, owner.
Mr. VanderNat disclosed that he is a neighbor of the applicant. He asked the Board if they had issue with him hearing and voting on the application. He did not feel that there was a conflict with the application. Mr. Dowler asked where he is a neighbor. Mr. VanderNat answered that his house is directly across the street from the applicant’s. There being no objections, Mr. VanderNat did not recuse himself.
Mr. Mathew Christensen, owner was sworn in to speak. Mr. Christensen stated that a majority of the property is adjacent to the front street reducing the buildable lot area. The lot skews to the back, hindering their ability to build an addition to the rear without encroaching upon the rear-yard setback.
Mr. Christensen stated that the distance from the corner of their house to the street is 40 feet. The distance from the corner of the house to the sidewalk as opposed to the lot line is 33 feet and not 26.5 feet.
Mr. Dowler asked where the 26.5 feet is measured. Mr. Christensen answered that it is measured to the front edge of his lot. The sidewalk is five feet beyond that. He stated that the intent of the setback is to maintain continuity for building area limiting encroachment upon the street and neighbors.
Mr. Brewer asked staff if there is a housekeeping issue to take care of. Mr. Hembree answered no, stating that it is an interior lot so that it has a setback of 12 feet.
Mr. Dowler asked where the setbacks are measured. Mr. Hembree answered that they are measured from the property lines.
Chairperson Chumley stated that it is an odd-sized piece of property. Mr. Hembree agreed, stating that if it had been a corner lot it would have been subject to more restrictive setbacks.
Mr. Christensen stated that if the property had been considered a corner lot then the house could not be built where it is located. He added that there are other unique characteristics of the property as the lot slopes, when facing, from right to left. It limits usable space in the back yard.
Mr. Dowler asked if they considered shortening the porch. Mr. Christensen answered yes, but they chose the size for better curb appeal and to lessen the monolithic design.
There being no further questions or testimony the public hearing was closed.
ITEM NO. 4:
Request for approval of a variance from Section 18-33E of the Vienna Town Code to construct an addition beyond the required setback line on property located 401 East Street, NE, in the RS-10, Single-Family Detached Residential zone. Filed by Sarah C. McGaughy, Trustee, owner.
Mr. Gary Williams of 401 East Street, NE, was sworn in to speak. Mr. Williams stated that they would like to build a kitchen expansion. The lot is at the corner of East Street, NE, and Creek Crossing Road, NE. The lot is odd in that the house faces Creek Crossing Road. They are requesting to build 4 feet into the setback area. They would like to build out the rear wall of the kitchen to match the rest of the house. They hope to gain floor and wall space for additional storage. The addition will not be any closer to the property line than the rest of the house.
Mr. Williams stated that they have neighborhood support along with their homeowners association. Chairperson Chumley asked if they are members of the East Creek Homeowners Association. Mr. Williams answered yes.
Mr. Petersen inquired if the requested variance is for 41 inches and Mr. Williams answered yes. He noted that originally the property was located in Fairfax County. In 1993 they were annexed into the Town.
Chairperson Chumley asked staff if the house was conforming at the time it was built. Mr. Hembree answered yes, stating that copies of that information are on file. He noted that Fairfax County determines corner lots as having two fronts and two side yards with no rear-yard. Mr. Haight asked if the request would meet Fairfax County zoning regulations. Mr. Hembree answered yes.
Mr. Brewer asked if they needed to approve housekeeping because of the existing deck on the house. Mr. Hembree answered yes.
Mr. Haight asked staff if annexing had the effect of down zoning. Mr. Hembree answered that it imposed a different set of standards. When discussing variances in a circumstance such as this it does seem to approach confiscation of the property.
There being no further questions or testimony the public hearing was closed.
BOARD OF ZONING APPEALS
MINUTES
DRAFT
REGULAR MEETING
December 19, 2007
The Board of Zoning Appeals held a regular meeting session to discuss four (4) advertised requests in the Council Room of the Vienna Town Hall, 127 Center Street, South, Vienna, Virginia, on December 19, 2007, beginning at 8:00 PM with Donald Chumley presiding as Chairperson. The following members were present: Marshall Potter, Gregory Haight, Robert Dowler, Robert Petersen, Charles Brewer, and Peter VanderNat. Also attending and representing the staff were Gregory M. Hembree, Director of Planning and Zoning, and Julie A. Morris. Board Clerk, Jennifer M. Murphy was absent.
ITEM NO. 1:
Request for approval of a variance from Sections 18-24D and 18-140 of the Vienna Town Code to retain an accessory building situated within the required setback area adjacent to a non-conforming dwelling located at 213 Nutley Street, NW, in the RS-12.5, Single-Family Detached Residential zone. Filed by Ramsey E. Zacharia and Laura L. Lee, owners.
Mr. Potter made a motion that the request be approved. Mr. Brewer seconded the motion.
Mr. Haight stated that as a point of order he felt that there is no variance necessary. Mr. Hembree stated that they would still need to vote on the housekeeping issue. He stated that rather than granting a variance they would be granting an appeal to his determination. Additional discussion followed.
Mr. Potter stated that it has been testified that the applicants tried to conform to all Town Code requirements. It is a question of an ambiguity, which should be resolved in their favor. The applicants have made every attempt, acting in good faith and therefore should be granted approval.
Mr. Brewer agreed.
Mr. Dowler stated that originally he was going to vote against the request. Upon reading through the Zoning Ordinance and the Town Code’s term “contiguous” he has since changed his findings. This decision is not due to any advice given by the Zoning Administrator noting that if that were his only reasoning then the Town Code would prevail.
Motion: Potter
Second: Brewer
Approved: 7-0
ITEM NO. 2:
Request for approval of a conditional use permit for the continued use, the construction of additions, and the renovation of the Vienna Elementary School, 128 Center Street, South, and in the RM-2, Multi-Family, Low Density, PR-Park and Recreational, and C-2, General Commercial zones. Filed by John Souser, PE, Adtek Engineers, agent for Fairfax County Public Schools, and the Mayor and Town Council for the Town of Vienna, owners.
Mr. VanderNat made a motion to approve the conditional use permit as submitted. Mr. Haight seconded the motion.
Mr. VanderNat stated that, as was carefully set forth, the only issue before them was the conditional use. The use has always been there and there are no changes to that use. He did not feel there were any issues so he is in favor of granting the use permit.
Mr. Haight agreed.
Mr. Dowler asked if they should include any restrictions. He noted that the Planning Commission included hours of operation in their motion of support. Mr. Hembree stated that he was going to attach a separate document to the order that included the Planning Commission’s recommendation and the list of uses as provided to staff by the applicant. It would all become a part of the record.
Mr. Petersen stated that as a part of a friendly amendment, his motion would include the recommendations set forth by the Planning Commissions.
Motion: VanderNat
Second: Haight
Approved: 7-0
ITEM NO. 3:
Request for approval of a variance from Section 18-33C of the Vienna Town Code to construct a front porch beyond the required setback line on property located at 354 Holmes Drive, NW, in the RS-10, Single-Family Detached Residential zone. Filed by Matthew Christensen, owner.
Mr. Petersen made a motion to approve. Mr. Brewer seconded the motion.
Mr. Petersen stated that as a neighbor he had spoken to the surrounding property owners. None of the neighbors expressed any issues. He noted that the facts described during testimony are accurate. The sidewalk was installed a few years ago. The sidewalk will never be moved. There is plenty of distance between the sidewalk and the house. It poses no issues against the neighborhood, or the intended use of setbacks.
Mr. Brewer stated agreement, adding that the minor encroachment does not undermine the intent of a setback.
Motion: VanderNat
Second: Brewer
Approved: 7-0
ITEM NO. 4:
Request for approval of a variance from Section 18-33E of the Vienna Town Code to construct an addition beyond the required setback line on property located 401 East Street, NE, in the RS-10, Single-Family Detached Residential zone. Filed by Sarah C. McGaughy, Trustee, owner.
Mr. Brewer made a motion that the request be approved and to include the housekeeping variance of the existing deck, which was constructed while under the purview of Fairfax County zoning requirements. Mr. Haight seconded the motion.
Mr. Brewer stated that it is a minimal request. It has been testified that it would be the only way to make the improvement.
Mr. Haight agreed, stating that it would be unfair as the house was constructed appropriately under the Fairfax County regulations.
Chairperson Chumley noted that the property owners should have been advised of the regulations that they would have to meet by being annexed into the Town.
Motion: VanderNat
Second: Brewer
Approved: 7-0
APPROVAL OF MINUTES:
Mr. VanderNat made a motion that the minutes from the, September 19, 2007, meeting be approved as drafted.
Motion: VanderNat
Second: Haight
Approved: 7-0
NEW BUSINESS:
Chairperson Chumley stated that it is a point of order that they elect a Chairperson at the end of each year.
Mr. Brewer nominated Mr. Chumley to remain the Chairperson of the Board.
Motion: Chumley
Second: Haight
Approved: 7-0
Chairperson Chumley wished everyone good holiday season.
There being no further business to discuss, the meeting adjourned at 9:20 P.M.
Respectfully submitted,
Jennifer M. Murphy
Board Clerk