Board of Zoning Appeals

1 REGULAR MEETING OF THE 2 BOARD OF ZONING APPEALS 3 City Council Chambers 4 300 Park Avenue 5 Falls Church, Virginia 22046 6 Thursday, March 15, 2012 7 7:30 p.m. 8 9 1. CALL TO ORDER 10 11 CHAIRMAN MURPHY: I call the March 15th regular meeting of 12 the Board of Zoning Appeals to order. 13 14 2. ROLL CALL: 15 16 CHAIRMAN MURPHY: Can I have a roll call please. 17 18 RECORDING SECRETARY: Mr. Williamson. 19 MR. WILLIAMSON: Here. 20 RECORDING SECRETARY: Mr. Taylor. 21 MR. TAYLOR: Here. 22 RECORDING SECRETARY: Mr. Castillo. 23 (No response.) 24 RECORDING SECRETARY: Mr. Stoodley. 25 (No response.) 26 RECORDING SECRETARY: And Mr. Murphy. 27 CHAIRMAN MURPHY: Here. 28 I want to note that Mr. Castillo is out of town and Mr. 29 Stoodley is down with the flu. He let me know this afternoon 30 that he could not be here. 31 32 3. APPROVAL OF MINUTES AND RESOLUTIONS 33 34 CHAIRMAN MURPHY: Item 3, approval of minutes and 35 resolutions. I was hoping we'd have the January minutes to 36 review but we had some hardware issues come up so those minutes 37 are not available for review yet. 38 I'd like to have a motion to add under Old Business, just 39 a formal approval of the annual report that's been drifting 40 around just so that we can get it officially approved and off to 41 the city clerk. 42 I had hoped there would be copies of it here tonight for 43 one last review but they're not in front of us. So if I get a 44 motion to add that under Old Business. 45 MR. TAYLOR: So moved. 46 MR. WILLIAMSON: Second. 47 CHAIRMAN MURPHY: Opposed? None. 48 49 4. OTHER BUSINESS: MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012  50 Discussion of City approval of a front porch at 900 51 Parker Avenue 52 53 CHAIRMAN MURPHY: We move to Item Number 4, Other 54 Business. 55 I asked that we have a discussion of the approval of the 56 front porch at 900 Parker Avenue. After the BZA meeting on 57 October 20 -- October 13th, we had a fairly long discussion of 58 what to do with the requests that were before us. We have a copy 59 of the minutes here in front of us. 60 Ultimately what the Board did was under the authority of 61 48-172 (3), allowed a second story to be put on an existing non 62 conforming structure following the outline of the foundation. 63 That allowed the second story to go on. I don't think there's 64 any questions or issues with that at all. 65 The second thing the Board discussed was then how to 66 address the porches that were proposed. The position of the 67 Board seemed to be that if it's within the existing building 68 envelope it's not really a problem, but there was problems on the 69 Parker Avenue side because the encroachments were going to be 70 further than would be allowed for a porch from the setback. 71 We had long discussions of whether or not to change the 72 setback line on this lot by variance. That was ultimately not 73 done. There were two requests, one for a new 20 foot setback and 74 one for a 25 foot setback. But instead we allowed the second 75 story and moved on to a variance to 481102 to allow porches to 76 extend ten feet instead of eight feet as allowed under the Code. 77 Again, we had a fairly long discussion of this. We know 78 there is a nonconforming existing stoop that goes out to 20 feet. 79 There were porches proposed across the entire front of the house. 80 After the BZA hearing -- let me go back a minute -- the 81 BZA ultimately had a motion to grant a variance to 48-1102. It 82 was seconded. It failed on a 4 to 1 vote. That was the end of 83 that hearing. The hearing was summarized that there was approval 84 from the Board to put a second story on but not approval to go 85 beyond the allowable extensions from the 30 foot line. And then 86 the applicant was informed that they had 30 days to appeal that 87 to the Arlington Circuit Courts should they chose to do so, 88 etcetera, etcetera. 89 In December I happened to be going through the 90 neighborhood and noticed that there was more on the front than 91 the original nonconforming stoop. I contacted the City on 92 several occasions to find out what the issue was. On December 93 21st or so I went to the Development/Planning Office and looked 94 at the plans and what was ultimately approved. I pulled out a 95 scale and measured them to make sure that things were what I 96 thought they were which were a hair out of line. 97 It appears to me that the porches on one side of the stoop 98 have been removed and pulled back but not on the other side. And 99 in fact the other side is still there from the plans but it had 100 the corner posts pulled back to the three foot line. 101 My opinion after looking at this was that in fact this is 102 new construction into encroaching further into a front yard that 103 is allowed by 48-1102. This raises a number of concerns from my 104 perspective because the Board specifically addressed this issue 105 and the Board did not grant approval or a variance to do that. 106 What I'd like to do this evening is update you on the 107 process that I've followed and get your approval to move forward 108 or not depending on what your opinions are. 109 To start off, this is a very small area. We're talking 2 110 feet by maybe 6 feet, 8 feet, something like that. It's not a 111 big issue as far as the extent of the encroachment. 112 What concerns me somewhat is that this is the exact extent 113 of the encroachment that we were talking about, two feet out from 114 where it was supposed to be. This is smaller than what was 115 originally proposed because one side has been removed but the 116 other side does remain. The Board discussed and acted on this 117 and then less than a week later a building permit was issued that 118 appears to countermand the Board's decision on that matter. 119 So I went through channels to the extent that I could. 120 You all are aware I received a letter from the City on February 121 10th because I did forward that to you. After that I also 122 responded that this had been raised at our January BZA meeting 123 and it was an official matter. 124 I ended up having a meeting with Mr. Snyder and Mr. Foster 125 on March 2nd to discuss the matter further. What I was hoping 126 was that we could find a way to resolve this and put whatever 127 steps, etcetera, in place that we could to resolve this and see 128 to it that it didn't happen again. 129 At that meeting, I would characterize the results that the 130 City's position on this is that the approval is within the policy 131 and practice of the City and that there is not a zoning 132 violation. 133 Is that a fair summary of the meeting? 134 MR. SNYDER: Yes, I think that's a -- I think that's a 135 fair summary. As you brought it to our attention, we looked into 136 it and I met with city attorney and looked at the application and 137 the action of the Board. 138 There are instances dating back a number of years prior to 139 this zoning administrator as well where extensions around a stoop 140 have been allowed as a matter of practice. They are typically 141 wood frame. They don't have a permanent foundation and you see 142 them in a number of places throughout the City. 143 And the Board having taken no official action on the 144 porches and the plan being redesigned to eliminate the extension 145 which connected to a second floor addition and a punch out of 146 building, I believe on the right side, this was basically, that 147 was removed from the plan and what is there presently is an 148 extension of the existing stoop with a roof over it and wood -- 149 wood foundations, if you will, on either side of the existing 150 stoop. Quite a bit smaller than what was originally requested 151 but never approved as a part of the variance application. MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012 152 I think, in fact, the Board took no real action on it. So 153 the redesign was within the practice of the City and seems to be 154 consistent with other properties in the area. 155 Now, as we all know, not every property in the City shares 156 the same setbacks. And one of the things I'm doing as planning 157 director is continuing the work that ZOAC was looking at of where 158 do we have nonconforming uses and situations and I will have more 159 information that I'm going to be sharing with the Planning 160 Commission and with you all in terms of that issue. And a lot of 161 that has to do with how do buildings relate to the rules we have 162 in place. 163 And this is something I don't think the last consultant we 164 had was able to get into but it's something we've been 165 undertaking with GIS, because we have a GIS person's been doing 166 this. 167 At any rate, that's another topic but it gets to a broader 168 issue, looking at the larger planning issues in the City we're 169 going to be working on and sharing information with you as that 170 goes forward. 171 MR. FOSTER: I just would add, Mr. Murphy and other 172 members of the BZA, that in addition to what Mr. Snyder described 173 and what you described, Mr. Murphy, the other thing we talked 174 about, we talked about two things in addition to what you guys 175 have laid out. The first is, I looked at this and I talked to 176 Mr. Snyder about it as well as the Zoning Administrator and 177 concluded that the action taken here by the Zoning Administrator 178 was within his discretion as authorized by Virginia law as Zoning 179 Administrator. That's number one. 180 And number 2, I'm sure you remember, Mr. Murphy, a lot of 181 our time at the meeting was spent talking about what do we do as 182 a matter of general policy going forward, as Mr. Snyder 183 indicated, to address the larger issue this presents. 184 So with that, I think everything else was accurately 185 described by the two of you. 186 CHAIRMAN MURPHY: I fully agree, that there was an 187 extensive discussion of what the planning policy should be and 188 how the zoning code should interact with that. 189 But I would add there was also a discussion of the fact 190 that the Code has certain requirements. I requested at that 191 meeting a Code citation that would allow this. As far as I can 192 tell, the plain and unambiguous language of 48-1102, 193 encroachments into required yards, there's nothing in there that 194 would allow this in any way from the 30 foot setback line. 195 So maybe you have a Code citation that can help me out 196 here. I've gone through it extensively in the past two weeks and 197 haven't been able to find anything in the R-1 A district in 48- 198 142, in 48-172 (3), in 48-1102, I've not been able to find 199 anything still. 200 And one thing we did say or at least I said at the meeting 201 was that the zoning ordinance has requirements and we do have to 202 follow those requirements. Certainly the BZA has to and I feel 203 that from the meeting of October 13th the BZA did so. 204 In the letter I received on the 10th there was an issue of 205 timeliness and that it was too late to do anything and this was 206 another topic that came up at our meeting and I would like to 207 discuss this portion of it with the Board. 208 First, is the Board in agreement with my concerns on this 209 matter? 210 MR. WILLIAMSON: Let me make sure I understand. So 211 essentially we had  we did not take a action at our Board 212 meeting. 213 CHAIRMAN MURPHY: That's correct. We did not approve a 214 variance. 215 MR. WILLIAMSON: To approve a variance that subsequently 216 the Zoning Administrator approved, it was a slightly different 217 design, is that -- 218 CHAIRMAN MURPHY: I think -- what I know for a fact is 219 that there was a building permit that was approved by the 220 departmental staff. I've not seen the building permit itself. I 221 don't know who signed off on it, how it was signed off on. I had 222 hoped the building permit complaints would be here this evening 223 but -- 224 MR. SNYDER: I think a point of clarification, the actual 225 action, resolution by the BZA approved the second story addition. 226 CHAIRMAN MURPHY: Yes. 227 MR. SNYDER: There was no action taken on the porch issue, 228 no positive vote for or against. And there was a discussion at 229 the end of the dialogue about that and that was one of the 230 considerations. In other words, there was not a denial action 231 there, there was an approval of one thing. I guess a motion that 232 didn't go forward so there was actually one thing done. 233 CHAIRMAN MURPHY: If I can cut in. What the issue is, the 234 Board of Zoning Appeals did not grant a variance to 481102. 235 MR. WILLIAMSON: Right. 236 CHAIRMAN MURPHY: That's the issue concerning me. 237 The other issue that is concerning me is this seems to go 238 against the discussion and intent and vote of the Board of Zoning 239 Appeals on this matter. 240 As we informed the applicant, there is appeal procedures 241 if you don't agree with the BZA and those appeal procedures are 242 you have 30 days to appeal this to the Arlington Circuit Court 243 should you chose to do so. 244 In some ways I see this almost as an administrative 245 overruling of the decision of the BZA. 246 MR. WILLIAMSON: Right. 247 CHAIRMAN MURPHY: That concerns me very much for this body 248 going forward. It concerns me very much for the amount of time 249 and effort that we as volunteers put in to this Board. That's 250 what I want to make sure the Board is also in agreement with, 251 that this is not something we like to see happen. 252 Again, I can find nothing in the Zoning Code that allows 253 encroachments beyond 8 feet of any type into a required front MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012 254 yard. The BZA had the discussion. It was very clear that we 255 were discussing two feet. And while two feet was not granted 256 across the board, two feet was still granted to an existing 257 component that was on the drawings previously. 258 I did look at the drawings on the 21st. I did measure 259 them out. They are the same drawings with some white tape over 260 the portion that had been removed. The only difference was the 261 posts on the porch extension were pulled back two feet so that 262 the front cantilevers over by two feet. That's my concern. If 263 this Board is not going to be given the respect that I think our 264 decisions deserve, we have some issues. 265 MR. SNYDER: I would like to mention -- 266 CHAIRMAN MURPHY: Excuse me for a moment. 267 So I did do some looking and there is the possibility that 268 nondiscretionary errors can be corrected under the State Code 269 without the 60 day limitation period that's laid out in 270 1522311. In order for that to occur, it has to have the 271 concurrence of the City Attorney to change any decision that was 272 made for a nondiscretionary error. 273 I would argue that approval of any new building's uses or 274 architectural features that encroach further than specified in 275 48-1102 was, in fact, nondiscretionary action. It exceeded the 276 authority of the Code and therefore it's a nondiscretionary 277 error. 278 What I would like to ask the Board is if you support that 279 and do you support preparing an official letter to the City 280 requesting that that action be taken. 281 MR. WILLIAMSON: Did not explain -- what is a 282 nondiscretionary error? 283 CHAIRMAN MURPHY: I think that is a good question that we 284 will probably get an answer to if we submit a letter. 285 The section of State Code just says the 60 day limitation 286 period shall not apply in any case where with the occurrence of 287 the attorney for the governing body modification is required to 288 correct a clerical or other nondiscretionary errors. 289 It -- certainly my feeling is allowing new construction 290 that doesn't meet the requirements of the Code was not 291 discretionary. It was, in fact, nondiscretionary and it was an 292 error. I would classify this as a nondiscretionary error and 293 see how that goes. 294 Overall it's not the extent of this, it's the existence of 295 this. It's the fact that we talked about two feet. Two feet was 296 an issue of discussion before the vote that did not carry on the 297 motion to grant the variance. Again, there are proper procedures 298 to follow if there's going to be an appeal of this and I don't 299 believe that administratively overruling the BZA which in my 300 opinion is in essence what happened, is the proper procedure to 301 do that. 302 MR. SNYDER: Just a point of clarification. 303 As we looked at the plan, the major reason that that front 304 variance was being requested was an extension of a porch 305 including a two story connection with a permanent foundation to 306 the right side of the house and it was a pretty major structure. 307 Following the Board's action, those plans were revised. 308 That was removed, and what was approved was in line with the 309 existing stoop running the side of it, basically providing what 310 has been approved in the City elsewhere with wood construction. 311 A front entryway projecting no further than the existing stoop 312 that's been there since the house was built. Not a permanent 313 foundation -- 314 MR. WILLIAMSON: Who approved it? 315 MR. SNYDER: It was different. And significantly smaller 316 and different. 317 MR. WILLIAMSON: Same -- it extends the same distance but 318 it's a different -- 319 MR. SNYDER: Well, the plans originally in front of you 320 had a -- the porch on the right hand side went all the way, I 321 believe went all the way out and had a walkway connecting it and 322 there was a second floor to it as well. 323 MR. WILLIAMSON: Yeah. 324 MR. SNYDER: So when the Board approved the second floor 325 in line with the existing line of the house, that was removed and 326 basically this is a front stoop, people to get in and out of the 327 whether, not extending beyond the existing brick foundation, done 328 not with brick construction but lightweight construction with 329 footers on either side of the existing brick porch. 330 CHAIRMAN MURPHY: This is the package of drawings that 331 came from the BZA in that meeting and what he's describing is 332 this entire section across the front pulled out on both sides. 333 And essentially what was done was this part was removed on the 334 front. This part was removed. 335 MR. SNYDER: That was removed and I think the entire thing 336 was made smaller. On either side. 337 CHAIRMAN MURPHY: I can't tell from these drawings. 338 However I can say that from the copy of the plans that I picked 339 up, what they did is they put white tape across this section of 340 it which accounts for the removal of these. So that section is 341 no longer on the plans. 342 This section, the corner posts were X'd out, moved back 343 here to the actual the three foot line where we said the porch 344 could be. And then there's a note to move them back. Supports, 345 the point load resting on pier below, cantilever, etcetera. 346 So this part is on the plans that were there initially. 347 It does not appear to be any smaller. This part was whited out 348 because it was removed. It's this section here, in particular, 349 this. And these are the -- a picture of the plans that I got 350 from the City on the 21st of December when I went down to look at 351 them and I measured them out. 352 So I just want to make sure that everybody here is very 353 clear on what exactly the issue is, what the change was. After 354 our meeting in the week or so from when we met until this was MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012 355 approved. 356 MR. TAYLOR: I think I understand. 357 MR. FOSTER: Just to complete the discussion of what was 358 actually approved, as I understand it from talking to Mr. Snyder 359 and the zoning administrator, it was essentially as Mr. Snyder 360 said, a stoop, where you have from the drawing a little bit of a 361 porch extension over the stoop so people don't get wet when they 362 go in the front door. 363 And as Mr. Snyder indicated, there is a long pattern of 364 previous approvals for similar type stoops and as I understand it 365 from the Zoning Administrator that was the basis for approving 366 this. 367 CHAIRMAN MURPHY: This is what was there, a line over the 368 existing bump out and if you recall the discussion, that bump out 369 goes to the 20 foot line, it is part of the existing structure. 370 The basement extends underneath it. That's a legally 371 nonconforming feature. That feature can continue with no 372 problems. They could have gone up two stories on top of it with 373 the variance that was granted. But that's the picture that was 374 in the package of what was there. 375 And you can see from the proposed drawings, even with that 376 side removed, what we have is much larger than the existing in 377 the photos. You have that versus this half over here. 378 So again, what I'd like to do is request that the Board 379 write a letter, particularly to Mr. Snyder and Mr. Foster who I 380 met with on the 2nd, respectfully disagreeing with the position 381 that this was within the policy or practice of the City. 382 I think the plain language of the Code is clearly on our 383 side. I've yet to hear any citation that would allow this to 384 occur under the specific language of the zoning ordinance. There 385 is no question based on the materials that we have available to 386 us from that hearing or from the approved plans that this extends 387 further than allowed by 48-1102. 388 It is not a big, huge violation. This is much more the 389 principle of the matter that this Board made a decision. You can 390 argue that we made it by default but no variance was granted by 391 this Board to exceed the encroachments, specifications listed in 392 481102, or new buildings, uses, or architectural features. 393 So whatever it is you want to call this, and we certainly 394 had a discussion of that during our meeting, is this building, is 395 this what, but the Code language says new buildings and I assume 396 that applies to everything, new uses, new architectural features 397 are allowed to encroach as specified in the Code. 398 If this is a porch, it's allowed to encroach 8 feet. The 399 setback line here is 30 feet. 8 feet brings it to 22 feet and 400 this goes to 20 feet. 401 I can find nothing in the Code. So I would like the 402 Board, if you agree, that we can -- that I will continue to 403 followup on this then and make a formal request that the 404 departmental staff approval of this be modified with the 405 concurrence of the City attorney to allow for the correction of a 406 nondiscretionary error. 407 MR. TAYLOR: Can I say something? 408 CHAIRMAN MURPHY: Yes. 409 MR. TAYLOR: I wish we weren't even discussing this. If 410 this was brought for a variance, I'd vote to approve this. I 411 don't think that it really meets all the tests but I would look 412 at this and say, yeah, let's do that and we wouldn't even be 413 here. 414 But the problem is that we did not approve a variance. A 415 variance is required for this, as best I can tell. And if you 416 can -- if you can approve -- if you can override our decisions, 417 then we might as well not even show up. I mean, why even be 418 here? 419 So if this is okay, then I think the BZA is useless. I 420 mean, I don't see how if we're going to continue, we can let it 421 stand. I would -- I would like to rewind time and have someone 422 ask me for a variance and I would vote yes and I'm sure everyone 423 else would vote yes. Pursue this in some way. 424 I mean, I've got all kinds of questions that I don't know 425 the answers to like, did someone tell them to do this? You know, 426 why is it cantilevered? Is it to make it kind of grayer or less 427 bad? 428 You know, I mean I remember it was a couple months ago 429 when that guy came in here for a second level on a variance and 430 wanted to have his fireplace cantilevered, remember the fireplace 431 cantilevered out? And John, I asked John if that would be okay, 432 he said you can't cantilever out. 433 CHAIRMAN MURPHY: So that's not touching the ground. 434 MR. TAYLOR: Yeah. And he didn't show up to answer the 435 question so I guess we have to ask. 436 MR. SNYDER: Well, he's on vacation. I just want you to 437 know, Mr. Boyle is attending his son's graduation from Air Force 438 Advance School in San Antonio, Texas, and will come back 439 tomorrow. 440 CHAIRMAN MURPHY: Congratulations. 441 And frankly, my feeling is that this was not an 442 inquisition for anyone. This was to figure out from the Board 443 the best way to move forward. In many ways because there were no 444 matters relating to the Zoning Administrator going on this 445 evening, I frankly would have been surprised to see him. He had 446 no reports to give us. He had nothing else. Brandon is acting 447 as our secretary as of our January meeting. If we had minutes 448 they would show that. 449 So I'm not concerned about that at all. I'm not concerned 450 frankly how we got here. What I am concerned about is the fact 451 that we're here and how do we resolve this problem and how do we 452 see to it that problems of this type don't come up again in the 453 future. That's my primary concern. 454 I can find nothing in the Code that allows this. I can 455 find many things that don't. But nothing that allows it. I'm 456 very concerned that any policy or practice that doesn't adhere to MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012 457 what I consider the clear and unambiguous language of 48-1102 is 458 arbitrary and capricious and that's not a good situation to be in 459 either. I certainly don't want any of our policies or practices 460 to be arbitrary. 461 So again, we don't need to take a vote on this unless you 462 want to but do I have the authority of the Board to forward with 463 an official letter request asking that the departmental staff 464 approval of this be modified to eliminate any encroachments that 465 are not in compliance with 48-1102 with the concurrence of the 466 City Attorney requesting his concurrence to correct 467 nondiscretionary errors. 468 That is the only way that I can see that this, A, can be 469 backed off and get us back to where we started. And there is a 470 window open to do that. 471 MR. WILLIAMSON: I'm having trouble seeing it. Because 472 what I've heard so far is that we didn't take action on something 473 that was brought to us. But then there was a different design 474 brought to the zoning administrator, or to zoning staff, and that 475 different design was authorized to proceed and that's where it 476 went. 477 And if there's a dispute over that, what should happen, 478 right, is there should be some kind of request to deny that 479 action or the actions of the zoning staff, the BZA. Not a letter 480 from the BZA, I don't see it happening that way. 481 So what I'm not in favor of is a letter from the BZA 482 asking to, you know, override an action, or to correct an action 483 to express concern about what took place. To get a better 484 understanding, I certainly don't want to get in the way of that. 485 But in terms of, you know, saying that they correct an action, 486 I'm not seeing that. 487 But if you feel like there's something you need to better 488 understand about the process that took place, I'm not going to 489 get in the way of that. 490 MR. SNYDER: Just one point. When we talked to Mr. Murphy 491 along with Mr. Foster, one of the things that didn't happen and 492 in the spirit of how to avoid this kind of thing in the future, 493 if you have multiple requests as a part of the variance, this is 494 like I said a variety of pieces to it. 495 It's helpful to actually take an action to deny the 496 various pieces. As opposed to in this case where one was 497 approved and then there was a motion that went nowhere and 498 therefore no action was taken. And that would have an impact on 499 how it could be viewed going forward. 500 So that was one of the things that we talked about in 501 terms of this would be a helpful practice for the Board when you 502 have those kinds of things. 503 MR. TAYLOR: The dozen pages or so of discussion during 504 that meeting ended with: So at this point you have approval from 505 the Board to put the second story on but not approval to go 506 beyond a level extension from the 30 foot line. And then that's 507 the words that closed the meeting. 508 CHAIRMAN MURPHY: I don't want to get into a semantic 509 issue here. The point of the matter is a variance was not 510 granted to do that. 511 Yes, it may be and it probably would be good procedure to 512 officially take votes denying something. I don't believe it's 513 necessary. But if it will help clarify record, that is fine. We 514 can vote twice on things and hopefully the vote will turn out to 515 be inverse of each other. And that point is taken. 516 But I also think that this needs to be put within the 517 context of what was put before us which was four separate 518 requests. Those four separate requests were overlapping and what 519 they requested, one requested that the front yard setback be 520 changed to 25 feet, one to 20 feet, one for porches, one for 521 something else, 13 feet instead of 8 feet for a porch, or 522 something along those lines. 523 As the discussion went on and we had an extensive 524 discussion on changing the setback. If the setback had been 525 changed to 25 feet, the entire plan as it was presented to us 526 that evening would have been allowed. The encroachments would 527 not extend further than allowed by 1102, changing the front 528 setback line via variance essentially rezones the lot and gives 529 it a new setback line. So new yard requirements, new everything. 530 Those two in and of themselves were overlapping, one at 20 531 feet, one at 25 feet. So it wasn't as straightforward as you 532 make it out to be. 533 However I would argue that the Board was fairly clear at 534 the end that the minimal action that could be taken to allow the 535 second story was a -- was an extension of an existing 536 nonconforming residential structure under the authority of 48-172 537 (3) and that dealing with the porches would be a second separate 538 issue. 539 The second separate issue was in fact a motion that I 540 believe was made by Mr. Williamson to amend or to grant a 541 variance to Section 114802 to allow encroachments to go ten feet 542 instead of eight feet. That motion was made. That motion was 543 seconded. Mr. Castillo seconded that motion. And we had a 544 discussion of it. The discussion goes on for another page and a 545 half or so before the vote. 546 The point was it was clear what the request was. It was 547 very clear what the action of the Board was. It was a motion to 548 amend Section 48-1102 to allow encroachments of ten feet instead 549 of eight feet. It was voted. It was 1-4 or one in favor, 4 550 opposed, and so no variance was granted. And then encroachments 551 of ten feet were on the approved building plans. That's where my 552 problem comes in. That is essentially an administrative 553 overruling of the BZA. 554 MR. TAYLOR: Well, two things. One, to address the 555 comment that we didn't specifically vote to deny it, procedurally 556 in the past we have been careful not to make motions to deny. 557 But even if we're going to deny a variance, we make a motion to 558 approve it and it loses, we've intentionally turned votes around MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012 559 and said let's make a different motion to keep us from doing 560 that. So it would be very procedurally different for us to say 561 this is something you can't do. 562 I would like to see this -- I would like to see this go 563 away. I don't know how we can make it go away. Seriously, this 564 is wrong here and I have better things to do with my time. And 565 if we make a decision and someone else overrides it and it's not, 566 you know, moving forward then, you know, then -- 567 MR. SNYDER: I think that's the question there, line 13. 568 MR. WILLIAMSON: In terms of the letter, I mean you're 569 two, experienced, knowledgeable members of the BZA. If you have 570 questions about what took place, I have no desire to get in the 571 way of you getting answers to your questions. But I just can't 572 be supportive of a letter asking for corrective action. That is 573 where I stand. 574 MR. FOSTER: And just a couple of things I wanted to add. 575 CHAIRMAN MURPHY: Yes. 576 MR. FOSTER: The first is just one final point on the 577 transcript of the variance hearing. I guess it starts at line 578 1298. Chairman Murphy said, No, your petition for number one was 579 not acted on. The Board acted to grant approval. 580 And then the applicant asked, In not acting, is that in de 581 facto a denial? That's my question. 582 And then at 1302, the Chairman stated, No because the 583 Board must move by motion. 584 And then at 1303 the applicant says, Okay. I just want to 585 make the record clear. 586 So again as Mr. Snyder indicated I think there was some 587 confusion walking out of there by the applicant as to whether 588 there had been a denial or not. That's number one. 589 And number 2 -- 590 CHAIRMAN MURPHY: I'm going to cut in because I'd like you 591 to read line 1304 through 1307. Because they tie directly to the 592 lines that you just stated. If you won't, I will. 593 So what the Board has done, it's moved and voted to allow 594 the second story on an existing nonconforming structure under the 595 first motion. These were all jumbled up and there was talking 596 back and forth. 597 The second motion failed which was a motion to provide a 598 variance for allowable extensions into a front yard. There was 599 no motion beyond that. 600 I don't see any ambiguity or lack of clarity in that but 601 just to make sure, I followed it up on the following two lines. 602 So at this point you have the approval from the Board to 603 put a second story on but not approval to go beyond the allowable 604 extensions from the 30 foot line. 605 This was a very long hearing and to pull one or two 606 sentences out of context is not necessarily going to help any of 607 us. And I'm not trying to pull things out of context either. 608 MR. FOSTER: To the extent that you're saying I was trying 609 to pull things out of context, I was not. I was simply trying to 610 make it clear that there was uncertainty and a question here I 611 think in the applicant's mind. 612 And I think from the discussion from the dais this 613 evening, I think we're all in agreement that one way to address 614 this going forward is to have a clearer record with respect to 615 motions that are made and voted either up or down with respect to 616 a denial. 617 MR. TAYLOR: I don't think that would help. 618 CHAIRMAN MURPHY: I honestly -- let me clarify. Because 619 the issue was, point one was asking for a variance and you have 620 to pull the actual package out because we were referring to these 621 as they were submitted and point one was to change the setback 622 line on the yard. We did not do that. We did the minimum 623 allowable that we thought was going to allow the second story 624 based on the Code that was before us. 625 I can't stress that enough. That as we went through here 626 we had various back and forths. If we do this one, this one's 627 moot, this one's now moot, which one's moot. It was not an easy 628 hearing for anybody present that evening. 629 But I will take exception to the final decision in any way 630 being unclear. I think it was stated very clearly by myself and 631 I don't think the Board misunderstood in any way and I'm pretty 632 sure the applicant to some extent did in any way either. 633 MR. TAYLOR: Okay. Clearly there is no Code to support 634 what was agreed. But this isn't exactly -- this isn't exactly 635 any of the variances that was brought before us. 636 Is there a way that we can look at this and say this 637 doesn't have anything to do with our decision, it has to do with 638 John looking at this, making an incorrect interpretation of the 639 Code, granting something that really isn't right by the Code but 640 then no one brought suit within a certain amount of time so it's 641 moot. 642 We've got to have some way out of this. What's the way 643 out? CHAIRMAN MURPHY: Well, I think that's why I was 644 asking for the approval to go with 15 2 23 11 C, that is a -- 645 there is several ways out of it. Drop the matter. That is one 646 way out of it. This Board can't bring suit any way. It's very 647 clear from the courts that even if this Board was aggrieved by 648 that decision, the Board has no authority to bring a suit against 649 the City. 650 I know Mr. Foster is well aware of that because the 651 Fairfax County and the Fairfax County BZA and I certainly don't 652 want to get into that situation. 653 MR. FOSTER: Can I ask a question? I can wait until 654 you're done. 655 CHAIRMAN MURPHY: Yes. 656 MR. FOSTER: It points up a question: That is, if the BZA 657 decides it's going to go ahead and send this letter and under the 658 Code section you referenced, that I concur in the proposal that 659 you've laid out, I mean, who do you envision taking the legal 660 action to seek to have it undone? 661 CHAIRMAN MURPHY: The City. MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012 662 MR. FOSTER: So at this point it would be the City of 663 Falls Church. 664 CHAIRMAN MURPHY: The request would be for the City to 665 make the change. 666 MR. FOSTER: So you as I think know, if that is going to 667 be the request, the City Council is going to have to authorize 668 that legal action to be taken. They will, I can tell you under 669 the Charter they have to authorize any legal action to be taken 670 by the City. 671 I've not talked to them about this but I can predict their 672 first question to me will be why should we spend City funds on 673 pursuing this legal action that the zoning administrator has 674 approved, you know, well over 60 days ago, it might even be 120 675 days. So what would your answer be to that question? 676 CHAIRMAN MURPHY: That it's a nondiscretionary error. 677 That in fact there was no Code authority to do this and 678 departmental staff approved something in the absence of Code. 679 Again, it's the principle of this matter. It's not the 680 extent. It's not the 20 square feet or whatever it is. It's not 681 the fact it's 2 feet. It was 2 feet all across the front, now 682 it's 2 feet on one side. 683 The point is that as volunteers we put in a lot of time 684 and effort and we try very hard to see to it that the letter of 685 the law as written is applied to our hearings. I don't think 686 there's any question that a variance was not granted to extend 687 beyond the allowable encroachments under 48-1102. Yet that was 688 effectively administratively overruled. That's a situation that 689 should not exist. A situation that should be reversed in my 690 opinion. We have to follow the rules. The City has to follow 691 the rules. If we want to have any consistent application of our 692 zoning ordinance, we have to apply it as written. 693 MR. FOSTER: All right. Just to followup on that. They 694 probably will also ask, you know, it's our understanding because 695 this is a public meeting and I think we have a record made, that 696 certain members of the BZA indicated that they thought this was 697 moot and were less concerned about it and so again the question 698 will be, in light of certain members of the BZA thinking it's a 699 moot issue, why should we spend public funds to pursue this. 700 CHAIRMAN MURPHY: Well, if we're not going to have 701 approval of the majority of the Board, of all three of us here 702 tonight, although frankly I think for administrative matters it's 703 a majority of the vote present, however I'm perfectly happy to go 704 with all three. If the Board of Zoning Appeals is not willing to 705 go forward with that, I won't go forward with a letter. The 706 Board will not submit a written request to do this. That's the 707 whole idea of having these discussions. 708 MR. TAYLOR: Let's go forward with the letter and let's 709 hope that something can be worked out in between this. 710 CHAIRMAN MURPHY: That's fine with me. 711 MR. WILLIAMSON: What's the letter going to say? 712 CHAIRMAN MURPHY: Again, as far as we can tell there is no 713 Code authority to do this and it's a nondiscretionary error that 714 could be corrected under the terms of 15-2 23 11 C, Code of 715 Virginia. 716 It's not the best result in the world. There may be other 717 options. At the meeting that we had though, the only option was 718 there is no zoning violation and this is within the policy and 719 practice of the City. 720 I cannot find how this is not a zoning violation on the 721 one hand and I certainly hope the policy and the practice of the 722 City is not to ignore the plain and unambiguous language of the 723 Code. 724 That's my feeling. Am I being a stickler on this? Very 725 possibly. But this is the principle of the matter, not the 726 extent of the matter. It's the fact that these discussions were 727 fresh in everyone's mind when the date was put over, part of the 728 plans and part of it is exactly as it was prior to that and it 729 was approved. 730 MR. FOSTER: I think a final procedural point, Mr. 731 Chairman. I think that if you're asking for authorization to 732 send a letter, that it does need to be through a vote based on a 733 motion. I don't think it's enough simply to get the verbal 734 support under Roberts Rules. Every local governing body and BZA 735 that I've worked with has done it through a motion and vote. 736 CHAIRMAN MURPHY: That's fine. I'm perfectly happy to do 737 that and we'll see how that works. 738 Is there any additional discussion of this matter? 739 Do I have a motion? 740 MR. TAYLOR: How do I word it? 741 MR. WILLIAMSON: I'm not prepared to make a motion. 742 CHAIRMAN MURPHY: Chair can't make a motion. 743 MR. TAYLOR: Yeah. I just don't know how to -- what 744 motion to make. I don't see -- I don't see this being corrected 745 so a letter asking it to be corrected is really just some sort of 746 a volley to get to a solution. Fine, if that's what it takes but 747 I wish there was a better way to a solution. 748 CHAIRMAN MURPHY: I can certainly envision a variety of 749 solutions. As I went through the process, this seemed to be the 750 least disruptive option under the Code. I don't want to make 751 accusations or anything else. This is just a nondiscretionary 752 error, a nondiscretionary error can be corrected under this 753 section of the Code. 754 There are other sections of the Code that I don't want to 755 go into with additional things that I don't want to go there. I 756 could see that if, in fact, this process continued and a letter 757 went out and the City was willing and able to do this, that it 758 could lead to a discussion with the applicant to come back and 759 request a variance for this particular thing. We'd have to see. 760 The Board -- a variance can be brought back before the Board 761 within a period of one year if they request and the Board agrees 762 to hear it. MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012 763 There are a number of things that could come from this or 764 this could die right here at the table today. That's I think 765 what I'm asking the Board through a motion or otherwise to do. 766 My feeling is a letter under that particular authority will keep 767 the matter open. It will not put it to bed. It will provide an 768 avenue where potentially to straighten this out. It could come 769 back before us for a variance. 770 MR. TAYLOR: I don't agree. I think -- I think that what 771 would happen if we say send a letter that says in writing what 772 we're saying now and since it requires approval -- 773 CHAIRMAN MURPHY: You may or may not concur. 774 MR. TAYLOR: So I just -- I'm just not seeing it. But, 775 you know, I like the idea of the variance. I thought about that 776 earlier, if there was some sort of quid pro quo, we could do, you 777 know, like some sort of HR solution along with the variance to 778 fix this. You know, just thinking about this makes me tired. 779 CHAIRMAN MURPHY: We're in the position unfortunately 780 where they can't come back I don't think and ask for a variance 781 because the City's position is no variance is necessary. I'm 782 trying to see if there is a way we can put this in line. Either 783 the BZA acts on this in some fashion or we don't proceed. That's 784 what it comes down to. 785 MR. TAYLOR: All right. I would be in favor -- I move 786 that we draft a letter stating that we believe that this decision 787 was made in error. And that the variance was not granted. Just 788 so 789 it -- I guess we're on the record. I don't see how asking for it 790 to be corrected is going to -- 791 CHAIRMAN MURPHY: Okay. So we have a motion to write a 792 letter saying that the BZA feels this decision was not in 793 compliance with the Code and was made in error. 794 Okay. We have no motion. 795 Do we have an alternate motion? I would suggest without 796 Mr. Foster getting mad at me that somebody move that we don't do 797 anything. 798 MR. TAYLOR: I do not think we should change our 799 procedures on that. 800 CHAIRMAN MURPHY: All right. In that case then I assume 801 that the BZA is not going to follow-up on this matter and I as 802 Chair of the BZA will not follow-up on this matter. 803 All right. Thank you, gentlemen. I appreciate it. 804 I've got to find my agenda. We did have the issue of the 805 annual report. We modified the agenda to put on to Old Business. 806 MR. FOSTER: Thank you, Mr. Murphy. 807 CHAIRMAN MURPHY: Thank you, Mr. Foster. 808 Do we have a motion to adopt the annual report as it was 809 circulated? 810 MR. TAYLOR: So moved. 811 MR. WILLIAMSON: Second. 812 CHAIRMAN MURPHY: All those in favor? 813 (A chorus of ayes.) 814 CHAIRMAN MURPHY: Opposed. None. 815 Okay. 816 817 5. OLD BUSINESS: 818 819 820 6. RECEIPT OF PETITIONS: 821 822 CHAIRMAN MURPHY: Our next item of business is receipt of 823 petitions. Is there any one from the public who wishes to 824 address the Board on a matter that was not on our agenda? 825 826 7. NEW BUSINESS: 827 828 CHAIRMAN MURPHY: Seeing none, we move onto Item 7, New 829 Business. 830 We have no new business. 831 832 8. ADJOURNMENT: 833 834 CHAIRMAN MURPHY: Do I have a motion to adjourn? 835 MR. TAYLOR: (inaudible) 836 CHAIRMAN MURPHY: That had been approved. That was 837 approved many months ago. 838 So do I have a motion to adjourn? 839 MR. TAYLOR: So moved. 840 MR. WILLIAMSON: Second. 841 CHAIRMAN MURPHY: All those in favor. 842 (A chorus of "ayes.") 843 CHAIRMAN MURPHY: 8:30 even, we're done. Thank you, 844 gentlemen. 845 846 Respectfully submitted, Noted and Approved: 847 848 849 850 Ann Hieber 851 Recording Secretary MINUTES OF THE 15 MARCH 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 14 JUNE 2012