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Minutes
BOARD OF ZONING APPEALS
MINUTES
PUBLIC HEARING
November 19, 2008
The Board of Zoning Appeals held one (1) advertised public hearing in the Council Room of the Vienna Town Hall located at 127 Center Street, South, Vienna, Virginia, on November 19, 2008, 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 Jennifer M. Murphy, Board Clerk.
Chairperson Chumley stated that an agenda is located on the podium at the door. He stated that they have asked that staff provide the Chairperson’s opening statement on the back of the agenda. Individuals will have the opportunity to read and review the entire statement if they so choose. The first four items listed on the opening statement indicate what the Board’s authorities are, that the Board does not have the power to change the Zoning Code, and that each item is decided on its own merits as there are no precedents. If the applicant is dissatisfied with the outcome they do have the option to appeal within 30 days of issuance of the Board’s decision. He stated that in the future he will notify the audience that the statement is located on the back of the agenda.
ITEM NO. 1:
Request for approval of a variance from Section 18-24F, 18-138 and 18-144 of the Vienna Town Code to retain existing improvements in excess of maximum lot coverage requirement and beyond the minimum setback lines on property located at 540 Orchard Street, NW, in the RS-12.5, Single Family Detached Residential zone. Filed by Donald L. and Ivy Marie Ellis, owners.
Mrs. Ivy Marie Ellis, owner, was sworn in to speak. Mrs. Ellis stated that she is before the Board due to the paved driveway that she has on the property. She explained that originally it had been a gravel driveway. She had contacted the Department of Planning & Zoning to inquire if she could park on the street while having the driveway paved. She stated that at no time was she informed of the need for a permit. As a result she is now being told that her property is over lot coverage. She would like permission to retain the driveway and parking area. She runs a daycare out of the home and the house is on a busy street. The driveway offers parents a safe place to drop their children off as well as a place for the children to play. The driveway does not interfere with the neighborhood and does not cause additional runoff. It has been an improvement to the property. Mrs. Ellis presented a letter of support of the application that was drafted by her neighbors. The letter was submitted for record.
Mr. Petersen thanked the applicant for their very clear explanation on the application. He stated that in consideration of the request he was unable to discern an adequate hardship that would be specific to the property; a hardship that is not shared by other properties in the neighborhood. He asked if the applicant could identify such a hardship. Mrs. Ellis answered that if the driveway had not been paved the parents would be required to park in a no parking zone along the street, blocking traffic. It would have created a potential nuisance for the neighborhood. She stated that, for safety sake, the children should not have to go out to the road to get in and out of their parent’s cars. Mr. Petersen stated that on Sundays there is an exception to the parking limitation from 7am to 3pm so that the First Baptist Church members can park along the street. He asked if the applicant has inquired about getting an exception to the parking restriction in the front of the applicant’s house. Mrs. Ellis answered that she has not. She stated that she would not know where the children could play if they had to remove the blacktop area. She noted that they have not experienced any water runoff issues since paving the driveway. At best they improved runoff when it was paved by correcting any grading issues.
Chairperson Chumley asked how many children the applicant cares for. Mrs. Ellis answered twelve (12) children. She stated that twelve (12) children is the maximum limit for a home daycare.
Mr. Haight asked staff if the daycare required a special exception or if it is allowed by right. Mr. Hembree answered that there is a limitation to the amount of children allowed for a home daycare but it is typically restricted to eight (8) children. Additional discussion followed.
Mr. Haight asked if the driveway was gravel before they had the area paved over. Mrs. Ellis answered yes. Mr. Hembree stated that he would presume that it was. He noted that he was the person who witnessed the paving take place on the property. He could not say if the area was expanded. Mr. Haight asked, if the driveway were to remain gravel, if it would have been an issue. Mr. Hembree answered that a gravel driveway it technically, non-conforming. He stated that as such driveways may no longer be constructed of gravel. Acceptable materials are concrete, asphalt or grid-pavers.
Mr. VanderNat asked staff if a permit was required at the time it was paved or if they were able to pave by right. Mr. Hembree answered that if the surface material or area of the driveway is being changed, then a permit would be required. Mr. VanderNat asked if, in the applicant’s case, a permit would have been required. Mr. Hembree answered yes. Mr. VanderNat asked if a permit was issued to the applicant. Mr. Hembree answered that he has a permit application filled out by the applicant on file. He stated staff has been unable to review the application because the property currently exceeds lot coverage. Upon review of the property he found that there were two other issues related to the property. There is an issue with the location of two (2) shed and also the proximity of the driveway to the side property line.
Mr. Dowler asked the applicant if they paved additional area over and above the existing gravel. Mrs. Ellis answered that it had all been gravel and that they only paved the existing gravel area. She stated that she was unaware of any permit requirements. She reiterated that when she called the office she was not told that a permit would be required. Mr. Dowler stated that the current Zoning Ordinance restricts properties to covering up to 25% of their property with impervious surface. The applicant has covered up to 34% of their property with impervious surface. He stated that is substantially more than he is comfortable with approving. He is sympathetic to the cost of material removal but he is having a difficult time finding an adequate hardship as it relates to the property. Any hardship discussed so far would be for convenience of the children and the applicant’s business.
Mr. Petersen asked the applicant when the driveway was paved and how long they have been operating a home daycare business at the property. Mrs. Ellis answered that the driveway was paved approximately seven to eight years ago. She could not say the exact date. The daycare has been in operation for approximately eight years. Mr. Petersen asked if the daycare business began at approximately the same time that the driveway was paved. Mrs. Ellis answered that when she started the daycare the driveway was gravel. She stated that the children did not have any place to ride their bikes. At that time she called the Department of Planning & Zoning to ask if she could park on the street while they were paving the driveway. At no time was she notified that a permit would be required. If she had known she would have obtained one.
Mrs. Ellis asked Mr. Hembree if he witnessed the paving eight years ago. Mr. Hembree answered that he witnessed paving during the summer of 2008. Mrs. Ellis disagreed stating that she was not paving during that time. Mr. Hembree asked what it was that they were doing at that time. Mrs. Ellis answered that she was uncertain.
Chairperson Chumley asked how long the applicant has owned the property. Mrs. Ellis answered that she bought the property in 1996. Additional discussion followed.
Mr. Haight asked if the driveway had remained gravel driveway until last year, would it have been an issue. Mr. Hembree answered no. Mr. Haight stated that it is an issue before the Board because staff has discovered that the instead of gravel it has been paved.
Mr. Potter asked the applicant if they received Fairfax County permission for having a home daycare. Mrs. Ellis answered yes. Mr. Potter asked if the applicant was directed by any of the governing authorities to pave the gravel area in order to care for children. Mrs. Ellis answered no. Mr. Potter asked if anyone ever discussed it with the applicant. Mrs. Ellis answered no. Mr. Potter asked for the age ranges of the children that she cares for. Mrs. Ellis answered that she cares for infants up to children twelve years of age. She stated that she is allowed to have a total of twelve children. Mr. Potter asked for the average age of the children that she cares for. Mrs. Ellis answered that they range in ages from four to five, 12 year olds down to five year olds. She stated that there are two, 6 or 7 year olds with the rest being young children. Mr. Potter stated that only a couple of the older children would be using the paved surface. Mrs. Ellis explained that during the school year the children play on it before and after school. She stated during the summer approximately five to six children play on the paved area for most of the day. Mr. Potter asked if the applicant’s clientele differs from the summer months to the school season months. Mrs. Ellis answered yes. Additional discussion followed.
Mr. Brewer asked the applicant if the coverage of the gravel area is the same as what is currently paved. Mrs. Ellis answered yes. She stated that she had re-graveled the area before paving it. Mr. Brewer asked for the approximate time frame for paving the driveway. Mrs. Ellis answered that it was around 2000 or eight years ago. Mr. Brewer asked if the applicant would ever have work crews out to make repairs. Mrs. Ellis answered no. Mr. Brewer asked if the current structures were on site when the applicant purchased the lot. Mrs. Ellis answered yes. Mr. Hembree passed around a survey obtained from the address file. He stated that the survey indicates what was on the property at that time.
Chairperson Chumley asked about the other issues related to the property. Mr. Hembree explained that the driveway is located up against the fence line. It should be setback at least a foot per Section 18-144, of the Town Code. There is also a shed that is located to the side of the mane house. It should be located behind the mane house per Section 18-138 of the Town Code. He stated that they are housekeeping issues discovered during review of the variance application.
Mr. Potter asked since the area has been paved for approximately seven to eight years, if there has been any increase in runoff of water. Mrs. Ellis answered no. Mr. Potter asked if any of the neighbors have complained. Mrs. Ellis answered no. Mr. Potter asked if staff had record of any complaints. Mr. Hembree answered no. Mrs. Ellis noted that she submitted a letter of support from her neighbors. Additional discussion followed.
Mr. VanderNat stated that he is disturbed in the apparent conflict of facts regarding the situation. He stated that they have testimony as to the paving taking place approximately eight years ago. They also have a document provided by a certified land survey, which if it is accurate, shows a conflict in that three large areas of pavement are not shown on the property as of April, 2003. He wondered how a certified survey could miss three large sections of pavement. He stated that there is a definite problem in assessing the facts.
Mr. Brewer asked if portions of the gravel could have been more compacted and overgrown so that it was missed by the surveyor. Mrs. Ellis agreed that could have been the case.
Mrs. Ellis stated that if the driveway were a nuisance to the neighborhood she would be happy to remove it but as it stands it is not. She stated that the property looks great and hoped that they would allow her to keep the driveway because she needs the driveway.
There being no further questions Mrs. Ellis was seated.
Mr. Rodney J. Spratley was sworn in to speak. Mr. Spratley stated that he is the son-in-law of the applicant. He stated that he has helped his mother-in-law in working on the property. He stated that in the time that he has spent at the property the driveway was a mixture of gravel and grass in some areas. The property was in a state of disrepair. As a family member he has helped on a number of occasions to do different things on the property. The smaller house towards the back of the property had not been used for a number of years. He speculated that if no traffic was traveling over the gravel then grass would grow up through the gravel deteriorating the defined driveway area.
Mr. Spratley stated that they would be willing to install any features to alleviate concerns for runoff. They have not seen any issue to indicate that it is a problem.
Mr. VanderNat asked if they were aware of the existence of the April, 2003, property survey. Mr. Spratley answered that they may have seen a copy of it at some point. He stated that in the course of working on the property he is aware of the condition of the property. Mr. VanderNat stated that the survey did not show the gravel area on the old survey but it is shown on the newer survey. He asked if they missed those large paved areas and how they should deal with such a discrepancy. Mr. Spratley stated that there were areas of the property that had gravel before the paving. Some areas had a mixture of gravel and grass. He stated that some areas were more prominent in gravel because it was the most used portion of the driveway. Mr. VanderNat stated that the April, 2003, survey is consistent with Mr. Spratley’s testimony. Mr. Spratley could not answer to specific dates but could say for certain that there was a mixture of gravel and grass combination over the bulk of what is currently black top area. Mr. VanderNat stated that based on trying to put facts together, it is plausible that the larger blacktop areas shown came after April, 2003.
Mr. Haight asked if there was ever a time that part of the driveway was paved and the rest of the area gravel. Mr. Spratley answered that he only recalled the paving, which took place during a family trip. Mr. Haight asked if the entire driveway was paved at one time. Mr. Spratley answered that he recalled that it was one time. Mr. Haight asked the applicant if she recalled. Mrs. Ellis agreed, stating that was correct that a portion had been paved leaving the rest to be paved later on.
There being no further questions Mr. Spratley were seated.
Mr. Brewer stated with regard to the sheds that, at a minimum they need to be relocated in order to conform to the Town Code. Chairperson Chumley asked if this would incur a major cost for the applicant. Mr. Brewer asked the applicant if the sheds are portable. Mrs. Ellis explained that they had an issue with rats on the property coming from Louise Archer Elementary. She stated that if left they would have a problem with rats or raccoons getting into the trashcans. She bought a portable shed so that it could house the trashcans. Chairperson Chumley asked if the shed could be moved. Mrs. Ellis answered yes.
Mr. Hembree noted that there is another shed that is in a location that goes against the Zoning Ordinance. Mrs. Ellis explained the location of the shed. She stated that the shed is used for storing items such as wood and large toys. Chairperson Chumley asked if the shed is also portable. Mrs. Ellis answered yes, stating that she would like to maintain the location so she doesn’t have to move such heavy stuff. Additional discussion followed.
Chairperson Chumley asked staff if there were any other issues with the property to be discussed. Mr. Hembree answered that there is an issue with the driveway that runs too close to the fence line. Chairperson Chumley asked if it is a de minimus issue. Mr. Hembree answered that is for the Board to determine.
There being no further questions or testimony the item was closed.
There being no further items the public hearing was closed.
BOARD OF ZONING APPEALS
MINUTES
REGULAR MEETING
September 17, 2008
The Board of Zoning Appeals held a regular meeting to discuss and vote on one (1) advertised public hearing in the Council Room of the Vienna Town Hall located at 127 Center Street, South, Vienna, Virginia, on November 19, 2008, 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 Jennifer M. Murphy, Board Clerk.
ITEM NO. 1:
Request for approval of a variance from Section 18-24F, 18-138 and 18-144 of the Vienna Town Code to retain existing improvements in excess of maximum lot coverage requirement and beyond the minimum setback lines on property located at 540 Orchard Street, NW, in the RS-12.5, Single Family Detached Residential zone. Filed by Donald L. and Ivy Marie Ellis, owners.
Mr. Dowler made a motion that the variance request, as it pertains to lot coverage for the driveway be denied. Mr. Potter seconded the motion.
Mr. Dowler stated that he is not unsympathetic to the applicant with respect to cost for removal but would feel uncomfortable if he were to vote for approval of a driveway that is in excess of the lot coverage restriction. The Zoning Ordinance requires that lot coverage be restricted to 25%. He is unable to justify a request to cover up to 34% of the property with impervious surface when a hardship of the property has not been established. What has been installed is for the convenience of the home business and not a hardship.
Mr. Potter concurred, stating that the applicant was unable to make a case for a hardship of the property.
Mr. Petersen stated that he will be supporting the motion to deny. He noted that the request specified the need for the children to have space to play on the paved area and for cars to park off of Orchard Street, NW. Upon review of the application and the October 3, 2008, Town Planner memorandum addressed to the applicant, proposals were put forth that would provide for a reduction in the paved area. As far as he could tell those proposals would still allow for parking cars, maneuverability and space for the children to play. For those reasons he would be voting in support of the motion to deny.
Mr. Haight asked staff, if the motion is successful would the applicant be required to tear out some of the driveway. Mr. Hembree answered yes. Mr. Haight stated that portions of the old driveway served the abandoned house located towards the rear of the property. Mr. Hembree answered yes. Mr. Haight asked if they could replace the torn out area with gravel. Mr. Hembree answered no, stating that since November, 1990, parking surfaces are required to be either concrete, asphalt or grid pavers. He explained that they determined that gravel does not stay in place and ends up washing down the Town’s storm drains. Mr. Haight stated that if the motion passed and a significant portion of driveway were removed, there would not be anyway to get to the house at the rear of the property. Mr. Hembree stated that the applicant can still construct a sidewalk or retain a portion of the paved area approximately 3 to 4 feet wide. It would be designated as a sidewalk. Sidewalks are not calculated as part of lot coverage.
Mr. VanderNat clarified that the motion is limited to the lot coverage request. Mr. Dowler agreed, stating lot coverage and driveway request.
Chairperson Chumley asked Mr. Hembree if staff could sit down with the applicants to work something out. Mr. Hembree answered that they have already had that meeting. They have discussed all of the applicant’s options. It was the opinion of the applicant that they needed to attempt the option of a variance request. If they were denied, the applicant can visit with staff to discuss further options. They would still be obligated to come up with a reduction in coverage to meet the 25% lot coverage restriction. They could also significantly reduce their coverage and resubmit a subsequent application to the Board. Chairperson Chumley asked if they would have to pay an additional filing fee if they were to re-file. Mr. Hembree answered yes. Additional discussion followed regarding possibly deferring the item. It was determined that the Board would not defer the item as a motion exists and they would take up the vote.
There being no further discussion Chairperson Chumley called the question.
Motion to deny: Dowler
Second: Potter
Approved: 4-3
Nays: Brewer, Haight, Chumely
Mr. Hembree stated that Town Code Section 18-138, as it pertains to the sheds still needs to be discussed.
Mr. Brewer made a motion that the sheds be moved to locations conforming to the Town Code within a reasonable period of time such as six (6) months. Mr. VanderNat seconded the motion.
Mr. Brewer stated that they are portable sheds so that arrangements could be made without considerable expense in order to have them moved and adhere to the Town Code.
Mr. VanderNat concurred stating that he had nothing to add to Mr. Brewer’s comments.
There being no further discussion Chairperson Chumley called the question.
APPROVAL OF MINUTES:
Mr. VanderNat made a motion that the minutes of the September 17, 2008, meeting be approved as drafted. Mr. Petersen seconded the motion.
Motion: VanderNat
Second: Petersen
Approved: 7-0
Abstain: VanderNat
NEW BUSINESS:
Chairperson Chumley wished everyone a pleasant Thanksgiving.
There being no further business to discuss, the meeting adjourned at 9:16 P.M.
Respectfully submitted,
Jennifer M. Murphy
Board Clerk