Board of Zoning Appeals

1 REGULAR MEETING OF THE BOARD OF ZONING APPEALS 2 CITY COUNCIL CHAMBERS 3 300 PARK AVENUE 4 FALLS CHURCH, VIRGINIA 22046 5 OCTOBER 11, 2012 6 7:30 P.M. 7 8 1. CALL TO ORDER: 9 10 VICE CHAIR WILLIAMSON: I'd like to call to order the October 11, 2012, 11 meeting of the Board of Zoning Appeals and ask for a roll call. 12 13 14 2. ROLL CALL: 15 16 MR. WADE: Mr. Stoodley. 17 (No response.) 18 MR. WADE: Mr. Williamson. 19 VICE CHAIR WILLIAMSON: Here. 20 MR. WADE: Mr. Calabrese. 21 MR. CALABRESE: Here. 22 MR. WADE: Mr. Krasner. 23 MR. KRASNER: Here. 24 VICE CHAIR WILLIAMSON: Thank you. 25 26 3. PETITIONS: 27 28 VICE CHAIR WILLIAMSON: Next order of business is petitions. Are there any 29 petitions from the public? 30 Okay. Seeing none, we'll move on to Item 4, New Business. 31 32 4. NEW BUSINESS: 33 34 a. Variance application V1536-12 by Diana Ray Britell, for a variance to 35 Section 48-238(3)(a) to allow a side yard setback on the West (left) side of 36 approximately 9 feet instead of 15 feet for the construction of a second story 37 addition over an existing house that is currently nonconforming and occupies a 38 portion of the left (West) side yard setback, on premises known as 1310 Robinson 39 Place, RPC#52-505-006 of the Falls Church Real Property records, zoned R1-A, low 40 density residential, said property owned by Timothy and Diana Ray Britell. 41 42 VICE CHAIR WILLIAMSON: First item under New Business is a Variance 43 Application V1536-12 by Diana Ray Britell, for a variance to Section 48-238(3)(a) 44 to allow a side yard setback on the west (left) side approximately 9 feet instead 45 of 15 feet for the construction of a second story addition over an existing house 46 that is currently nonconforming and occupies a portion of the left side yard 47 setback on premises known as 1310 Robinson Place. 48 Will the applicants please step forward. And will all those who intend to 49 speak on this tonight including applicants, please raise your right hand. 50 (Witnesses sworn.) 51 MR. WADE: Please sign in. 52 VICE CHAIR WILLIAMSON: I guess we will start with a brief staff report and 53 then hear from the applicant. 54 MR. WADE: Thank you, Mr. Chair. 55 This is, the Britells were unfortunate enough to be on the on the wrong end 56 of a very large tree during the infamous derecho storm. Their house is situated 57 right next door to one of our building inspectors in the building safety division 58 and at the time of the storm I believe he thought the tree had hit his house and MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013  59 went outside and unfortunately it hit the neighbors' house. 60 The applicants are no longer able to live in the house. It's been deemed 61 unoccupiable by the building official and the applicants want to go ahead and take 62 the opportunity to add on a second story addition while they have to do all the 63 extensive repairs that they have to do any way. 64 This is a house that is partially at a side yard setback, within part of it, 65 I think one corner is closer than ten feet to the side lot line which is why staff 66 cannot administratively approve this second story addition even though what they're 67 proposing will not encroach any further into the setback and it will be straight up 68 over what's existing. 69 So of course this is not anything very different from what the Board sees 70 from time to time. The Board definitely has the authority to approve this under 71 Section 48-172(3). 72 And with that, I'll defer to the applicants. 73 VICE CHAIR WILLIAMSON: Thank you. Go ahead. 74 MR. BRITELL: Thanks. If you wish I can go through the package we 75 submitted. 76 We have a -- do members all have the package here? The first page is the 77 copy of the plat. In the red hatched area you see the requirement for the second 78 floor variance request. It's built straight up over the existing first floor area. 79 The house was originally built in 1940 I believe prior to the requirement side 80 setback. The lot is substandard. The frontage is less than 75 feet wide. The 81 access to the house is not perpendicular to the street but slightly skewed. So it 82 presents some difficulties in terms of building within the side setback. 83 On the second page of my application I show the elevations of what existed 84 before the tree hit our house. Obviously it's a small cottage style house that we 85 hope to preserve. 86 The third page shows proposed elevations. We're using the side and front 87 foundations and walls as they exist today but going straight up. The total height 88 change on the roof is about 6 feet on the east side and more like 9 feet on the 89 west. I'm sorry -- yeah, that's correct. West, got confused for a second. 90 The next page shows the existing floor plans. The following page shows the 91 proposed first floor plan. The next, the second floor plan. Following that is a 92 photo of our house before the tree hit it, very nice, cute cottage. And the tree 93 lying on the roof. I was in the house, unfortunately, not injured. My wife was 94 away at the time so we all feel very fortunate. No one got hurt. But as you can 95 see, as you go through the next couple of pictures, the house is very badly 96 damaged. 97 The screened porch on the back I had just got it refurbished what existed, 98 it was really sad, complete loss of that. It was a really nice feature. The 99 chimney was knocked over. You can see the east side gable roof was displaced from 100 the actual cinder block walls to the left, most couple of feet in some places. I 101 think the cinder block probably saved my life because I was in there at the time 102 and it would have been kind of a devastating thing if it hadn't been for the cinder 103 block walls. 104 Couple of photos of interior damage. We have plaster walls and ceiling and 105 large chunks of both were knocked loose and strewn about the house and obviously 106 there was water damage because it was raining very hard at the time and all our 107 possessions were basically lost to water damage as well as the house being damaged. 108 Fortunately we had a very nice settlement with our insurance company. They 109 were very kind, lived up to their agreements quickly, and gave us the opportunity 110 to move to an apartment for the next 11 months while we're rebuilding. So we 111 quickly wanted to come up with a design alternative that gets us back in the house. 112 We love our neighborhood. We like what we have. We kind of want to make it a 113 little bit more modern and that's what we're asking the Board to consider. 114 MRS. BRITELL: And we're building straight up over what the one part of the 115 porch and the house that we could salvage, we're building straight up. 116 VICE CHAIR WILLIAMSON: Thank you. Very sorry to hear about what happened. MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 117 Damage looks quite extensive. Everybody's okay? 118 MR. BRITELL: Everyone's fine. Yeah, we feel very fortunate. We salvaged 119 some sentimental objects but other than that, we didn't have very much to work 120 with. 121 VICE CHAIR WILLIAMSON: Thank you. 122 I look to my fellow Board members to see if they have any questions for the 123 applicant. 124 MR. CALABRESE: Just a quick question. Under the statute, it requires a 125 showing of undue hardship as well as no detriment to the adjacent properties. 126 Maybe you can address those two issues. 127 MR. BRITELL: Sure. We bought the house in good faith not knowing it was a 128 substandard lot. And it was already in a setback area. Because of, you know, 129 obviously the way the house was oriented, it sits in that side setback to some 130 degree. 131 In order to rebuild and get a house that we thought modern and livable, we'd 132 have to demolish everything and move it over and to conform to both side setbacks 133 potentially build a third floor much higher. We didn't think that would fit into 134 the neighborhood as nicely as it ought to and basically we're saying our hardship 135 is based on the existing house purchased in good faith inside that setback. 136 MR. CALABRESE: Any detriment to the adjacent properties? 137 MR. BRITELL: Very little. Some small fence damage that I repaired. 138 MR. CALABRESE: I mean to your neighbors. 139 MR. BRITELL: That's what I mean. 140 MR. CALABRESE: They're not -- is there any concern from your neighbors as 141 far as this? 142 MRS. BRITELL: No. In fact we have letters from the neighbors on both sides 143 and across the street supporting our design. 144 MR. KRASNER: Did you have those in the pack? 145 MR. BRITELL: No, I haven't. Would you like those? 146 MR. KRASNER: Yeah. 147 MR. BRITELL: Can I give them to you now? 148 MR. KRASNER: Yeah. 149 These are neighbors on the west side is included in this packet here? 150 MR. BRITELL: The east, west, and north side -- or north side of the house, 151 yeah. 152 MR. KRASNER: I have just one other question. So in the R way zone normally 153 it's a 75 foot width, lot width is required and you are at? 154 MR. BRITELL: 73 feet I believe. 155 MR. KRASNER: 73 feet. So the lot is undersize with respect to width. 156 The current setback that you're going to maintain is what, and 15 is 157 required? 158 MR. BRITELL: 9 feet. 159 MR. KRASNER: You're at 9. You're going to remain at 9? 160 MR. BRITELL: Yeah, it's not going to encroach any further into the setback. 161 MR. KRASNER: Okay. That's all from me. 162 CHAIRMAN WILLIAMSON: I don't have questions here. I think it's very clear. 163 MR. KRASNER: I agree. If my colleagues are ready, I'm going to propose a 164 motion to approve the variance request based on the testimony provided with respect 165 to the undersize lot as a hardship and -- there are no other conditions so I would 166 just propose that we approve the variance request as submitted. 167 Do I have a second? 168 MR. CALABRESE: Second. 169 VICE CHAIR WILLIAMSON: So the -- okay. I would say I think you can just 170 restate your motion and then we'll do a roll call vote on it. 171 MR. KRASNER: Okay. For the record, the motion is to approve Variance 172 Application V1536-12 for a variance to Section 48-238(3)(a) to allow the side yard 173 setback of 9 feet which is as it's existing today to continue to be added on as 174 part of their addition. So moved. MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 175 VICE CHAIR WILLIAMSON: And that's in light of testimony presented. 176 MR. KRASNER: Obviously in light of testimony presented with respect to the 177 existing undersize nonconforming condition of the property, the undersized and lot 178 width by 2 feet from what's normally required. 179 VICE CHAIR WILLIAMSON: Okay. Roll call. 180 MR. WADE: Mr. Williamson. 181 VICE CHAIR WILLIAMSON: Yes. 182 MR. WADE: Mr. Calabrese. 183 MR. CALABRESE: Yes. 184 MR. WADE: Mr. Krasner. 185 MR. KRASNER: Yes. 186 MR. BRITELL: Thank you. Appreciate it. 187 VICE CHAIR WILLIAMSON: Good luck. 188 MR. KRASNER: Good luck with your home. 189 MR. BRITELL: Thank you for your time. 190 191 b. Special Use Permit application U1535-12 by Shoba Khandagle, for permit per 192 Sction 48-236(1) to allow a day care operation for 7 children on premises known as 193 261 Gundry Drive, RPC #52-309-293 of the Falls Church Real Property records, zoned 194 R-M, multi-family residential, said property owned by Shoba Khandagle. 195 WITHDRAWN BY APPLICANT 196 197 VICE CHAIR WILLIAMSON: Okay. I see the second item of New Business was a 198 special use permit application. I have here that that has been withdrawn by the 199 applicant, is that correct? 200 MR. WADE: Correct. 201 202 5. APPROVAL OF MINUTES: 203 204 Draft Minutes: June 14, 2012 205 August 13, 2012 206 207 VICE CHAIR WILLIAMSON: All right. Next item on the agenda is the approval 208 of minutes. 209 MR. WADE: Unfortunately as we did not get the minutes to you in the packet, 210 so we'll have them for the next meeting. 211 212 6. OTHER BUSINESS: 213 214 VICE CHAIR WILLIAMSON: Okay. All right. Moving onto Other Business. I 215 think there is no -- I'm aware of no Other Business. 216 MR. WADE: Staff just has, we've been having a few internal discussions 217 about some minor changes to the Board's Rule of Procedures. We wanted to check 218 with the Board to see if at the next meeting we can bring some proposed changes and 219 then if the Board has any, in between then, any ideas, we might able to discuss at 220 the next meeting as well. 221 VICE CHAIR WILLIAMSON: I'll look forward to your recommendations. 222 MR. WADE: Thank you. 223 224 7. OLD BUSINESS: 225 226 a. Appeal application A1534-12 (MUNIS #20120778) by Richard G. Maynard et 227 al, appealing the approval of Grading Plan 297 by the Zoning Administrator and 228 other City officials on premises known as 406 and/or 408 Van Buren Street, RPC #53- 229 208-016 and RPC #53-208-015 respectively of the Falls Church Real Property records, 230 zoned R1-A, Low-Density Residential, 406 Van Buren Street owned by ASR Designer 231 Homes, LLC, and 408 Van Buren Street owned by Harjote Randhawa: 232 The undersigned are aggrieved by the acts and inactions of the Zoning MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 233 Administrator ("ZA") and other City officials in the administration of Chapter 48 234 of the Falls Church City Code, (hereinafter "FCCC") with respect to approval of 235 grading plan GP-297 (hereinafter sometimes the "Grading Plan") and issuance of any 236 permits for demolition of the existing home, destruction of any trees or other 237 vegetation, grading or regarding of the property, or the proposed development of 238 more than one single family home at 406 and/or 408 Van Buren Street (including the 239 development of one home on either of the two asserted "substandard lots," such 240 property being further described as Lots 1 & 2, Block 19, of the Falls Church Park 241 subdivision in the City of Falls Church (sometimes referred to as "the Property"). 242 243 VICE CHAIR WILLIAMSON: Moving onto Old Business. 244 First item under Old Business is an Appeal Application A1534-12 by Richard 245 G. Maynard, et al, appealing the approval of Grading Plan 297 by the Zoning 246 Administrator and other City officials on the premises known as 406 and 408 Van 247 Buren Street, RPC #53-208-016 and RPC 53-208-015. Okay. So for this appeal, this 248 is for 406 and 408. Okay. 249 All right. If the applicants can step forward. If anybody cares to speak 250 on it tonight, if you would rise and raise your right hand. 251 (Witnesses sworn.) 252 VICE CHAIR WILLIAMSON: Thank you. 253 I would first defer to staff for an update. 254 MR. MALLER: Mr. Chair, may I interrupt for one moment? 255 VICE CHAIR WILLIAMSON: I think I'd like to get a staff update first on this 256 matter. 257 MR. MALLER: Thanks. 258 MR. WADE: The Zoning Administrator has prepared a few memos so I'll defer 259 to the information on those memos and I believe the City Attorney may speak to 260 something upon this case as well. So I'll defer to the memo and the City Attorney 261 for this. 262 VICE CHAIR WILLIAMSON: Okay. City as part of this update, City Attorney 263 John Foster, have you prepared or planning to speak on this? 264 MR. FOSTER: I am here to answer any questions that the Board may have. I 265 sent out a memorandum, a turning point memoranda to you all earlier today on a 266 couple of procedural issues. I'm here to answer any questions on that. 267 So with that I'll turn it over to you guys. 268 VICE CHAIR WILLIAMSON: So we'll look to you to answer any questions we may 269 have. 270 Are there any questions at this time from my fellow Board members? 271 MR. CALABRESE: I guess have a fundamental issue, the threshold issue, 272 whether this Board had the authority to consider issues that have already been 273 decided by the Supreme Court. 274 As I understand it they have decided on this very exact same issue, 275 different properties but this exact same issue. And if that's the case, we 276 certainly do not have the authority, if that is the case, do not have the authority 277 to overturn decisions of the Supreme Court. 278 So I don't know if that's a question or not, but that's a concern I have. 279 Perhaps, I don't know how the petitioner had a -- what your presentation was going 280 to include but that's something that I think before we even get into the merits of 281 this case we have to understand whether we can even hear this. 282 MR. MALLER: Sure. Thank you, Mr. Calabrese. 283 I, first of all, have discussed the lack of full board with all of the 284 appellants. 285 I'm sorry. Let me back up. I'm Dan Maller, 308 Walnut Street and I 286 represent the appellants in both of these next two appeals. 287 VICE CHAIR WILLIAMSON: Did you sign in? 288 MR. MALLER: I did not. 289 VICE CHAIR WILLIAMSON: Thanks. 290 MR. MALLER: And so I do -- I would like to address that question but I do MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 291 first for the record want to say that the appellants are not willing to proceed 292 under Rule 4-2 which indicates that there is a right to a continuance if they're 293 less than 5 voting members present. 294 We understood earlier in the day that 4 members would be present and Mr. 295 Wade's been good enough to communicate and update us as he learns information and 296 unfortunately with Mr. Stoodley absent the appellants are not willing to proceed 297 without 4 members present tonight. 298 And so we would ask for a continuance of both of these next two cases. 299 And I'm happy to address any other questions but before I did any of that I 300 wanted to make that request for the record. 301 VICE CHAIR WILLIAMSON: Okay. Discussion. 302 MR. KRASNER: There's a couple of issues that that brings up. First of all 303 I know we're approaching the 90 day limit to hear the appeal and that was as to the 304 attorney's memo. So I'm not sure how that affects that. 305 I also have concerns about the amount of time it's taking to decide this 306 matter. We had to continue it last month. So I have concerns about continuing it 307 again. 308 I'd like to ask the City Attorney to ask us if we must wait for a full Board 309 or we have a quorum, if we're within our power to act, the three of us who are 310 present today. 311 MR. FOSTER: There are couple of issues. The first you just raised, Mr. 312 Krasner, and that is Virginia Code requires that the BZA make a decision on an 313 appeal before it within 90 days of the filing of the appeal. 314 The 90 day period runs for the 1007 Lincoln appeal on October 15th, four 315 days from now. The 90 day period on 406 Van Buren runs on November 12th. 316 The Rule 4-2, I'm assuming that that is a rule of procedure that has been 317 adopted by the BZA, am I correct on that? 318 MR. WADE: Yes. 319 MR. FOSTER: The statutory deadline trumps any internal rule or procedure 320 that a body has adopted unless it's superseded and so that the deadlines that I 321 just mentioned do need to be adhered to. 322 MR. CALABRESE: So those are statutory, we can't extend them. We don't have 323 the authority to extend the deadlines even if we were to grant the continuance, we 324 would have to at the same time grant some sort of extension, but do we have the 325 authority to even do that? 326 MR. FOSTER: That's a good question. There is a case from the Supreme Court 327 of Virginia, the Tran decision from 2000. And there the Court held that the BZA 328 did have the authority to extend the 90 day deadline but I think a key fact there 329 was that the appellant as well as the landowner, in other words all the parties 330 agreed to the extension. There was no objection raised to the extension. 331 Whether there is an objection raised to this extension, I don't know. I 332 can't speak for the property owners. But that is something certainly if all the 333 parties are in agreement, I think the BZA does have the authority to extend the 90 334 day deadline under the Tran decision. 335 MR. KRASNER: Now, normally the 90 day deadline is not adhered to, the 336 normal obligation for a variance or a special permit to the BZA, the 90 day 337 deadline is not adhered to, the application is automatically considered approved; 338 is that normally the case if it's not heard by the Board? 339 MR. FOSTER: I think with respect to special permits that may be the case. 340 There is not that automatic approval with respect to the appeals, but nonetheless 341 we do have that statutory language that I wrote so -- 342 MR. MALLER: Mr. Chairman. 343 VICE CHAIR WILLIAMSON: Please. 344 MR. MALLER: The City Attorney raised the Tran decision which I was prepared 345 to address and I'll just point out that is 260 Virginia 654. That's a 2000 case 346 involving the Board of Zoning Appeals in Fairfax County. 347 I don't disagree with what Mr. Foster said and the Court there said that the 348 code section which is 15.2 23-12, quote, Contains no prohibitory or limiting MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 349 language concerning action after 90 days; accordingly we hold the 90 day time 350 period for appeals is directory rather than mandatory and that the BZA did not lose 351 jurisdiction to render a decision on appeal after 90 days had passed. 352 I understand the concern. My clients share the concern about the passage of 353 time. I mean these are, you know, dozens of people in these neighborhoods that 354 feel aggrieved and directly affected by these developments and I don't think it's 355 in anybody's interest to draw that out. 356 But having been through this in a couple of cases previously, you know, one 357 involving my own property where, Mr. Williamson, you may remember that there were 358 only three members present and, you know, it was -- you know, as an attorney you 359 got to feel for people who are not counsel. And having sat there as the appellant 360 in that case, you know, not knowing if all three of the members present were going 361 to agree with what we thought was a simple ruling was extremely stressful. And I 362 promised myself not to go through that again. 363 And of course the other case was the previous hearing of the Lincoln appeal 364 where the vote was 2 to 1 in favor of the appeal and ultimately the court in 365 Arlington, you know, felt that a 2 to 1 decision meant nothing. 366 Well, looking at history where a 2 to 1 decision meant nothing, I'm just 367 inclined, I strongly recommended to the appellants that they request a continuance 368 and they've all agreed. So that's our request. 369 As I said, I would be happy to address any other questions now or in writing 370 or in any other way but I think the Board has the jurisdiction. It's clearly 371 within the rules and, you know, with all the debate we've had about process in 372 Falls Church, I would hope that the Board would implement that rule as it's 373 written. 374 MR. CALABRESE: If I can ask a question. You said all the parties agree. 375 Do you agree that in the Tran case that all the parties had stipulated that they 376 would agree with the continuance? 377 MR. MALLER: Well, I can certainly provide the Board with a copy of the 378 decision. I had it here because I knew that it could conceivably be an issue and 379 I'll confess that I haven't studied it. 380 MR. FOSTER: Mr. Calabrese, I can read into the record the quote from the 381 opinion if it would help. Just bear with me for just a second, I'll pull it up on 382 my device. 383 While I'm doing that, one additional consideration, and this was present in 384 the Tran decision as well, is the impact that the delay has on the due process 385 rights of the property owner and any prejudice or harm the property owner suffers. 386 That's not my argument to make. That's something Mr. Baskin if there is harm 387 suffered he can articulate that. I think that is something the BZA needs to keep 388 in mind. 389 But, yes, in the Tran decision and this is the very end, Mr. Maller, if you 390 have your copy in front of you, they stress, this is at page 659, (inaudible), that 391 was the applicant, failed to object to any of the continuances which caused the 392 lengthy delay. Earlier statements to that same effect in the opinion. So there is 393 no objection, the parties were agreement extending it beyond the 90 days. 394 VICE CHAIR WILLIAMSON: Any comment on that? 395 MR. MALLER: Yeah, if I may. It's true that the other party in this case, 396 in the Tran case did not object and there were actually six continuances apparently 397 and it went on for 550 days which I submit is kind of an extreme case. 398 I would also like to ask Mr. Foster who I know practiced in Fairfax, whether 399 the Fairfax BZA had a rule similar to the rule that this BZA has. 400 But I'll hold that thought if I can because the issue of prejudice is one of 401 real concern to my clients. In the Lincoln Avenue appeal specifically, there's 402 been a long debate with the City and these appellants and the Seeburg appellants 403 about the City's failure to enforce a stay. 404 So it's impossible, I'll submit, that without a stay in place that there is 405 any prejudice to these appellants. They've shown a willingness to proceed with 406 construction regardless of an appeal. So I'll submit in that respect and in the MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 407 Van Buren appeal where we know that the City will issue a permit on request, how 408 can there be prejudice if we know these appellants have the right to essentially a 409 full Board and they require 3 votes to get an overturning. I think as a matter of 410 law and as a matter of the rules that there is no prejudice to these builders. Of 411 course, they can speak for themselves but that's the position of these appellants. 412 MR. KRASNER: I hate to interject, I think these appeals are going to have 413 to be considered separately. I'm an immediate neighbor on Lincoln. I'm going to 414 have to be recusing myself from the Lincoln matter altogether, so that case will 415 not go forward tonight, the 1007 Lincoln matter by the pure fact that I'll recuse 416 myself and there will only be two members here. 417 As far as getting four members for Lincoln, we're a 4 member Board at the 418 moment. That may not even be possible until the City decides to appoint a fifth 419 member. So just to get that out there on record, we need to keep these separate, 420 running on separate clocks even though they share some issues and similarities so. 421 VICE CHAIR WILLIAMSON: Let's stick with the first one. Thank you for 422 bringing that forward. Let's stick with the first item under Old Business if we 423 could. 424 So I think there is a couple of things here for me and I'd like to hear if 425 there is any objection to the continuance. But there's two items for me. 426 First is that, you know, we have a large group of people sitting in this 427 room approximately 30 days ago ready to hear about this and then we had to continue 428 it until this date. And now there's a large group of people in this room and we're 429 asking to continue it again. So I think that in and of itself, you know, I think 430 is a -- is something I'm having trouble, you know, getting comfortable with, number 431 one. 432 But then number 2, we're being asked to continue something that we're not 433 even sure we have -- we should hear, right? So I don't want to continue something 434 only to come back and then find out that we shouldn't have even been hearing it in 435 the first place. 436 So that's a threshold question I think that we have and it goes back to the 437 initial point that was raised which is that should we even be -- should we even be 438 hearing this. And I don't understand if this is any different at all from the case 439 the Supreme Court had ruled on which we certainly, you know, have no -- we can't 440 act, they have decided this. 441 MR. MALLER: Sure, and I'd like to address that. 442 VICE CHAIR WILLIAMSON: Please. 443 MR. MALLER: Regardless of the other point. 444 Now, Mr. Chairman, are you referring to the first point of Mr. Boyle's memo 445 dated October 4th? 446 VICE CHAIR WILLIAMSON: I'm referring to Mr. Calabrese's comments. If you'd 447 like to restate them, I think that might be helpful. 448 MR. CALABRESE: I understand and reading through the materials, that the 449 Virginia Supreme Court has ruled on a similar, identical legal issue that's at hand 450 here and determined that the decision made by the Zoning Administrator was proper. 451 If that is the case and if what the appellant is asking for us to make a 452 judgment or to change in some manner, make a decision that would be contrary to 453 that decision, I don't think we have the authority to do that. 454 MR. MALLER: Sure. Really, there is no basis for Mr. Boyle's assertion that 455 this has been decided. The procedural posture of the 2006 case, the McWilliams' 456 case, was that it was in the Circuit Court, it did not go to the BZA. It was in 457 the Circuit Court under a different provision of law. 458 At the conclusion of the evidence, the Court entered a motion to strike 459 which says that there was insufficient evidence but the Court made no comment. 460 That's the meaning of a motion to strike in Virginia and maybe Mr. Foster can 461 comment on that. 462 But I filed a petition to the Supreme Court which declined to hear the case. 463 So there's no ruling by either one of those Courts that we can point to that says, 464 well, I agree with this decision, I agree with the methodology. So the issue is MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 465 very much live and ripe for determination by this Board because all the case law is 466 that the Circuit Courts defer to the Board of Zoning Appeals, not as Mr. Boyle has 467 suggested to the Zoning Administrator. There is no deference whatsoever in a Board 468 of Zoning Appeals to the Zoning Administrator. It's your job to make that 469 determination. 470 But the 2006 case in Circuit Court, there is not a single word in the 471 transcript, in the decision, that says anything about anything except the appeal is 472 dismissed. So yes, it's true that the appeal was dismissed but until this Board 473 rules on the merits of this issue, there's been no ruling and the 2010 case, 1005 474 Lincoln, as the Board knows resulted in a 2 to 1 decision of this Board. 475 Now that decision was upheld, quote, unquote, by the Circuit Court and again 476 the Supreme Court declined to hear the case. But to suggest that that means that, 477 you know, when 2 out of 3 members of this Board voted to uphold the appeal, that 478 somehow that all of that means that the issue has been decided in the favor of this 479 interpretation by the Zoning Administrator, I think is just wrong as a matter of 480 fact and wrong as a matter of law. 481 This Board under the State law and the Board of Zoning Appeals in Falls 482 Church is the body that has the right to stand in the shoes and the duty really to 483 stand in the shoes of the Zoning Administrator and decide if in all of your opinion 484 what he's done is right or wrong. So these appellants want that determination on 485 the merits by this Board and there's been no such determination. The 2 to 1 vote 486 in favor of the appeal is in effect a nonaction of the Board. 487 MR. CALABRESE: If we can go back, there is a lot scrolling around here that 488 is confusing. 489 Looking at a September 25, 2012, order from the Virginia Supreme Court 490 denying the petition for rehearing, which case is this, of the Circuit Court? 491 MR. MALLER: That's the 1005 Lincoln case that I just mentioned. And that 492 is the final dismissal of the case where this Board voted to 2 to 1 in favor of the 493 appeal. The Arlington Circuit Court said -- really what they said was I didn't 494 have standing. That's what the Circuit Court said in that case. And that was the 495 only quote, unquote ruling of the Court because that was the matter that decided 496 the case from their perspective. So, it doesn't get to the merits. 497 MR. CALABRESE: If I can ask Mr. Foster, was this a standing issue or was 498 this on the merits? 499 MR. FOSTER: There were two issues that were addressed by the Circuit Court. 500 It was Judge Almand who issued that decision. The first issue addressed was 501 standing but Judge Almand then went on to address the underlying merits of the 502 case. She said even if you did have standing, appellants, I rule that the Zoning 503 Administrator was acting within his discretion in reaching the decision that he did 504 and I'm not going to reverse it. 505 And so I have to take issue first of all of what Mr. Maller has said, saying 506 it was limited to standing. It was not. 507 Secondly on the issue of both the 2006 as well as the more recent 2012 case 508 involving 1005 Lincoln, those briefs that were submitted to the Supreme Court of 509 Virginia address the underlying issue that is present in this case and that is, is 510 the Zoning Administrator reading the Zoning Ordinance correctly when he reaches the 511 conclusions that he does with respect to substandard lots. 512 I want to stress I'm not taking sides here but it is crucial that the BZA 513 have the full record and history before it when it's making its decision here. So 514 that's my point in walking you through that. 515 MR. MALLER: I have great respect for Mr. Foster and his memory but what the 516 Court said in the most recent case was, and it was limited to saying the BZA made 517 that decision, meaning 2 votes was not 3 votes, and the BZA is entitled to great 518 weight. The Court did not say that the Zoning Administrator was correct or 519 entitled to any particular weight. He merely said that a 2 vote majority of 3 in 520 the Board of Zoning Appeals was insufficient. 521 I agree with Mr. Foster, I'd like this record to be in front of you if 522 you're going to really make this kind of a ruling tonight because I think it's MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 523 erroneous to interpret that ruling that way. But whether it's erroneous or not, I 524 think you should have that actual document in front of you. I don't have it with 525 me. There is a transcript. There is a final order too but there is a transcript. 526 And, you know, if somebody has that order, you know, perhaps we can make some 527 progress. 528 But that Judge Almand did not rule anything about the Zoning Administrator 529 in my recollection. And that makes a big difference because it's this Board that 530 has the authority over the Zoning Administrator. In Circuit Court the ruling of 531 this Board is presumed correct. Which means that this Board has the ultimate 532 decision-making authority and power and the Circuit Court does not because that is 533 an appeal. It's an appellate proceeding. So you do not have the same rights in 534 Circuit Court that you do before this Board. 535 So again, there hasn't been a ruling on the merits, unless you construe 536 agreeing to proceed with 3 Board members present and submitting that to the Board 537 was tantamount to agreeing that it was a decision on the merits when the ruling of 538 the Court was if you don't get 3 votes it's not a decision on the merits. And 539 that's the reason frankly we're asking for the continuance, to just bring it back 540 down to what we're talking about. It's proceeding with 3 voting members present is 541 not a fair or proper process. 542 And, yes, it's the City Council's fault for not appointing members to this 543 Board. There should be an alternate member, there should be 5 members. If 544 somebody recuses themselves or anything like that, there should be 5 voting members 545 on this Board and your rules recognize that. 546 MR. KRASNER: I don't think there is any argument with you on that point. 547 But I think we as members on the Board are forced to work with what we have. We're 548 not the City Council and that's really their purview. I think there is a real 549 issue here where we're not talking about again an applicant for a variance or a 550 special permit who's asking for continuances and they're only delaying themselves. 551 In this case we have appellants appealing and asking for a delay or a 552 continuance and it's delaying somebody, an individual who is issued all proper 553 permits by City officials, was told that they can proceed after being appealed, 554 that the appeal holds up, this person who was given the green light to go and I'm 555 concerned about again the -- the inherent or the unfairness in that in forcing that 556 person to continue to wait to get an answer on something where the City and its 557 appointed officers directed them to proceed as being in compliance with all 558 existing laws and now the appeal. So the problem is continuing to defer that 559 decision onto the future because it's not the appellants who are suffering, it's 560 the person who has been forced to delay or having a cloud certainly hanging over 561 their actions ultimately I think bears the tougher burden. 562 MR. CALABRESE: I have a clarifying question. So last meeting it was the 563 respondent who asked for the continuance, is that not correct? Or was that -- you 564 asked for it. That was you that asked for that. 565 MR. MALLER: Yeah. Mr. Wade had indicated that Mr. Stoodley could not be 566 present. I had by e-mail responded back and said we would be requesting a 567 continuance. That's been the practice in the past that you advise in advance and 568 then I was not present when it was called. A number of the appellants were here 569 but it was continued to tonight. 570 MR. CALABRESE: I have to agree with Mr. Krasner. I don't like these 571 continuing continuances. There appears to be some disagreement as to the 572 interpretation of the previous rulings and I don't like the nature of these 573 continuances. And especially in light of this latest continuance would put us in 574 limbo in a sense, whether we would be going beyond the statutory deadline that we 575 may or may not have the authority to go beyond. And I guess we'll have to ask on 576 that issue, we'll have to ask the other side if they would -- or I would like to 577 ask them if they would agree with a continuance. 578 VICE CHAIR WILLIAMSON: Yeah, how about that? 579 MR. BASKIN: Good evening. My name is Bill Baskin and I'm here representing 580 ASR Design, the owner of lot two of the two lots on Van Buren. And I appeared here MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 581 a month ago thinking this hearing was going to go forward and was informed that Mr. 582 Maller was going to request a continuance and didn't show up to request a 583 continuance or mailed it in. 584 We had witnesses here and were prepared to go forward and objected to the 585 continuance at that time. 586 I again object to the continuance at this time. It is prejudicial to my 587 clients and I think I'd like to touch on sort of the threshold issue I guess of the 588 Board's authority to take this matter up. 589 First of all, this same issue has been decided multiple times by the Zoning 590 Administrator in the City of Falls Church, the same determination. And it's been 591 upheld in at least one occasion by this Board of Zoning Appeals. But upheld. It's 592 been upheld on the merits. Twice Mr. Maller has appealed cases of this very same 593 issue to the Arlington Circuit Court, one he went straight to the Circuit Court, 594 litigated all these issues and was unsuccessful, had the appeal to the Supreme 595 Court dismissed as without merit. 596 Then, several years later brought the case involving 1005 Lincoln Avenue 597 that came before you. That was the same issues, identical issues as before. This 598 BZA upheld the Zoning Administrator, Mr. Maller appealed to the Circuit Court of 599 Arlington County again. He had a full and complete trial in that matter, presented 600 all his evidence, presented all the same arguments. 601 His case was decided on the merits. It was decided, the final order of the 602 Court did find that he was not aggrieved and -- by the actions of the Zoning 603 Administrator and further, I'll read from the order -- and further appearing that 604 the petition of Mr. Maller has failed to submit sufficient evidence to rebut the 605 presumption of correctness according -- accorded the Zoning Administrator. It is 606 therefore ordered that the motions to strike are granted after a full consideration 607 of this matter on the merits and the petition is hereby dismissed. 608 That decision which was after a full hearing on both sides, was appealed. 609 The Supreme Court found no merit and Mr. Maller asked them to reconsider, they 610 again found no merit in it. 611 He's now bringing a third case and I think a fourth I guess, the one after 612 this, on the identical issues, the identical arguments, and it's irresponsible. 613 This -- this is an abuse of process. It may be sanctionable. Mr. Maller continues 614 to assert his positions in this thing after repeatedly being ruled against, then he 615 and his clients are very likely going to face suits for damages. And I don't think 616 this Board has the authority to overturn the Supreme Court and, in fact, I know it 617 doesn't. 618 And this whole procedure costs a lot of time and a lot of money to my 619 clients. I'm sure it costs time to the other folks involved who Mr. Maller is 620 representing and I feel bad for them. They haven't been through this before I 621 suspect but he has and he knows where it's going. 622 VICE CHAIR WILLIAMSON: So in summary you would say that you object? 623 MR. BASKIN: Yes, absolutely. 624 VICE CHAIR WILLIAMSON: Okay. Listen, I think with that discussion and I, 625 you know, I'm -- it boils down to this threshold question that you initially 626 raised, whether or not we think we can even hear this. I certainly haven't heard 627 anything that suggests that it hasn't gone to several other venues including the 628 Supreme Court which has acted on it. All of that evidence presented combined with 629 the -- the delay -- the delays in the case but I think most importantly the 630 threshold question kind of brings us to the point that you started us out with is I 631 don't think we -- I don't think we can hear this matter. I think it's been decided 632 upon and we can't hear it. 633 MR. KRASNER: Again, I place a lot of weight in the opinion of our City 634 Attorney. He's advised us of that. I certainly, without continuing delays and its 635 effect on the parties whose actions are being appealed after being told by our city 636 officials that they comply with all the existing ordinances and provisions so I'm 637 inclined to agree. 638 And I would further ask the City Attorney if he recommended that this case MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 639 has been decided, this issue has been decided so I agree. 640 VICE CHAIR WILLIAMSON: I think he's advised -- he's explained the case to 641 us. I don't know if there was -- I don't know if I heard a recommendation or not. 642 MR. KRASNER: He presented the issue of it's already been decided and I 643 think on the issue I think I agree. 644 VICE CHAIR WILLIAMSON: Brandon, when there is an appeal like this, is it -- 645 would we have a motion to decline to hear the appeal or is it simply that we refuse 646 to take action? 647 MR. WADE: I believe to even hear the case you would have to rule by motion 648 to hear it. So in doing so if that was not upheld by a vote, then the Board would 649 be voting not to hear the case. 650 VICE CHAIR WILLIAMSON: Okay. I think before we proceed I think we should 651 determine if we're even going to hear this case. 652 MR. CALABRESE: Are you saying there needs to be a motion not to hear the 653 case, are you saying it's required? 654 MR. WADE: Correct. 655 MR. CALABRESE: Now when we talk about the case, we're talking about -- 656 VICE CHAIR WILLIAMSON: Appeal application 1534-12. 657 MR. KRASNER: I'm not acting on the other matter in any way. 658 MR. CALABRESE: I would make a motion for this Board not to hear the Appeal 659 application A1534-12. 660 MR. KRASNER: I'll second that. 661 VICE CHAIR WILLIAMSON: Yes? 662 MR. MALLER: May I be heard briefly just on the issue of what is different 663 in this case from the previous case. Because there are issues and one issue in 664 particular that I've just learned of that makes this case different from issues 665 that have been raised before. That is the Code Section in question which is 48-11 666 02 B, the clause that says if a property -- I'm sorry. If a lot is a lot of 667 official record as of 1944 and so forth, and if it's in an R zone and if it can't 668 reasonably be combined with other property it may be developed. 669 What appears to be different here is that the ordinances applicable to 670 subdivisions, this house was built in 1948, the subdivision ordinance which was 671 actually adopted in 1947, caused the 1948 conveyance a subdivision. And I can go 672 into this in more detail but the effect of that 1948 subdivision is to combine the 673 two lots in question here. 674 And I have copies of the 1947 log. I think I also have a copy of the 1948 675 deed. Those are not in the record as of now because I've been researching this, 676 trying to track down records. But I would like to submit the 1947 statute excerpt 677 and I will do that now. 678 And I'll represent to the Board that there was a deed, a conveyance of the 679 property in 1948. It is a matter of record in the packages that we've submitted 680 that the house in question was built in 1948. That is the house that ASR and Mr. 681 Randhawa wish to tear down. 682 I apologize. I cannot -- here you go. 683 VICE CHAIR WILLIAMSON: As you look for that, are you saying that this will 684 -- it's an argument based on what calling a subdivision means, or like what the 685 implications of that are? 686 MR. MALLER: Yes. These lots can only be split apart if they're still 687 separate. And the deed in question is Deed Book 610, page 263. It was the 28th of 688 February 1948, in other words just after that statute was adopted by the Falls 689 Church Town Council. And this deed conveys the two lots but does not comply with 690 that subdivision ordinance. Nevertheless, that ordinance applied to this deed. 691 These properties were previously undeveloped at the time -- at the time this house 692 was built. That's a matter of record. 693 And so under that statute these lots were, in fact, combined when this deed 694 was recorded 28th of February, 1948. And of course they were conveyed together 695 several more times, which is not a violation of anything. It's the splitting of 696 these lots. You know, they're not separately eligible for consideration under that MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 697 1959 code because they have been combined in 1948. 698 And I will point out another case that was heard by the Arlington Circuit 699 Court on the subdivision issue which was heard a couple of years ago, it was Smith 700 versus Frazier. That case did result in a reported decision of the Arlington 701 Circuit Court. That is not just a transcript and an order but an opinion that said 702 a certain deed that was done in 1937 effectively resubdivided the property because 703 of the law that was in place at the time in 1937. 704 So this is an issue that's been ruled on by the Arlington Circuit Court, 705 that is the drafting and recording of a deed can affect the subdivision. So I'm 706 saying whether or not the issue was present in the other case, the issue was not 707 raised under that statutory provision in the other case. So that is a distinction. 708 The other distinction that I would raise for the Board is that this Falls 709 Church Code Section requires that these lots be of official record as of 1944. The 710 other research that I did is to try to track down the evidence of that official 711 record because that's a precursor for even considering whether these other issues 712 are there. And the reference in the deed is to look, M 4, page 150 of the land 713 records of -- it says Alexandria, County of Virginia, now Fairfax County. 714 So I went to Fairfax County. I got a copy of deed book 715 M 4, page 150, which I have in my hand. This has nothing whatsoever to do with the 716 properties in question. In other words that reference is wrong. 717 Now, I also called Alexandria and I said, you know, what's the story. You 718 know, do you have a deed book M 4. And they said no. 719 So, whether these lots even existed is also a question and I've only just 720 gotten this information together. I'm not going to sit here and tell you that it's 721 the end of the story but I am telling you that it raises a significant question. 722 Whether these lots are even eligible under this code provision. 723 VICE CHAIR WILLIAMSON: Thank you for that. 724 I guess, you know, what I -- it sounds to me like is simply another way to 725 get at the same issue that has already been decided by this Board and has been 726 decided by other Courts, including the Supreme Court. 727 So I understand what you're saying and what you're bringing forward but it 728 doesn't sound like a new issue to me. It sounds like another way to argue what has 729 been the same issue. 730 And so I'll defer to my Board members, including Mr. Calabrese, if he would 731 care to, you know, in any way amend his motion. But if not, having heard this I 732 would -- 733 MR. MALLER: My last comment, Mr. Chairman, would be to open the matter for 734 public hearing while all the people are here and before you make your decision. 735 VICE CHAIR WILLIAMSON: I think it's still the threshold question of whether 736 or not we can hear it. 737 MR. MALLER: I've said enough. 738 MR. CALABRESE: I have nothing further. 739 VICE CHAIR WILLIAMSON: Okay. Okay. So then you're standing by the motion 740 you made earlier. 741 MR. CALABRESE: Yes. 742 VICE CHAIR WILLIAMSON: Roll call vote. 743 MR. WADE: Mr. Krasner. 744 MR. KRASNER: Yes. 745 MR. WADE: Mr. Calabrese. 746 MR. CALABRESE: Yes. 747 MR. WADE: Mr. Williamson. 748 VICE CHAIR WILLIAMSON: Yes. And when we're saying yes we are saying we're 749 not going to hear the appeal. 750 MR. WADE: Correct. 751 VICE CHAIR WILLIAMSON: Thank you. 752 753 b. Appeal application A1531-12 (MUNIS #20120663) by Scott Renner, Arthur Pierson, 754 D. Thirkill, John Murphy, et al, appealing the actions and inactions of the Zoning MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 755 Administrator and other City officials in approving grading plan GP-287-288 on 756 premises known as 1007 Lincoln Avenue, RPC #51-215-052 of the Falls Church Real 757 property records, zoned R-1B, medium density residential. 758 759 760 VICE CHAIR WILLIAMSON: I guess the next item of Old Business is the Appeal 761 Application A1531-12 by Scott Renner, Arthur Pierson, D. Thirkill, John Murphy, et 762 al, appealing the actions and inactions of the Zoning Administrator and other city 763 officials in approving Grading Plan GP-287-288 on the premises known as 1007 764 Lincoln Avenue. 765 Mr. Krasner. 766 MR. KRASNER: I'll state for the record I'm an immediate neighbor to that 767 subject property so I'll be recusing myself from any further deliberation in any 768 way. 769 VICE CHAIR WILLIAMSON: Okay. At this point we do not have a full board in 770 order to act upon this. And, Brandon, if you will remind me, is there a -- what's 771 the time line we're up against on this? 772 MR. WADE: I'm not sure on the 90 time line on this one. 773 VICE CHAIR WILLIAMSON: I think this was -- 774 MR. WADE: October 15th. 775 VICE CHAIR WILLIAMSON: October 15th, okay. 776 MR. WADE: This was the first one. 777 VICE CHAIR WILLIAMSON: So the Board had until October 15th to act upon it 778 and we do not have a full Board. Okay. 779 All right. I'm afraid we're unable to act. 780 MR. MALLER: Mr. Chairman, you might ask Mr. Foster, but I hate to suggest 781 this but Mr. Krasner is present for the purpose of a quorum and what you're talking 782 about would be a motion that doesn't require 3 votes. 783 So maybe -- there is no point of allowing the other appeal to go on if 784 you're going to make the same decision ultimately. While I'm not consenting to it 785 and I'm certainly objecting to it, I think procedurally it's worth simply disposing 786 of the two at the same time. I don't think anybody has any interest in leaving it 787 pending. I can't imagine that you would make a different ruling on that case. 788 Now the other two matters I raised that were different than the Van Buren 789 appeal are not different on the Lincoln appeal. Those lots are lots of official 790 record in Fairfax County properly recorded, number one. And number two, well, 791 actually I'll withdraw that. 792 I think the other issue is still present which is that house was apparently 793 also built in 1948 and conveyed after the subdivision ordinance. So that issue 794 remains. That is the issue that these lots were, in fact, combined and subdivided, 795 resubdivided in 1948. 796 So with that comment, I actually believe that this Board has the power to 797 act on the motion, if they chose to do so. 798 VICE CHAIR WILLIAMSON: I'll defer to Mr. Krasner and the fact that he's 799 already recused himself I think carries great weight with me. 800 I guess my question at this point is, you know, what is the result of our 801 inaction given that the 90 day clock will expire in four days. 802 Mr. Foster. 803 MR. FOSTER: Sorry to interrupt. In light of Mr. Krasner's recusal, there 804 had been some amendments to the Virginia Conflict of Interest Act and of the 805 Virginia Code that addresses the situation we have here which is because of the 806 conflict of interest a member recused themself. 807 And if I'm reading the code sections correctly, what they provide is the 808 remaining members of the body constitute a quorum for the conduct of business. So 809 now, they clearly address governing bodies. The wrinkle here is this is not a 810 governing body, this is the Board of Zoning Appeals. Whether that makes a 811 difference, I need to take a look at that. 812 Could I ask if the Board can stand in recess for five, ten minutes and take MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 813 a look at that. Because I think everybody agrees if there is a way to do this this 814 evening without having to, you know -- 815 VICE CHAIR WILLIAMSON: That's why I asked the question, what would happen, 816 would there be -- would this Board at least get to the end of its role in this. 817 MR. FOSTER: Right. If I can have five minutes, I'll bring that to closure. 818 MR. CALABRESE: One question is whether we were to vote on it would this be 819 an effective decision that would have, I suppose, you know -- essentially that the 820 decision wouldn't be -- would have no weight and would certainly just -- wouldn't 821 resolve the issue and that's really what you're looking at. 822 MR. FOSTER: Right. I'll do that with your indulgence. 823 VICE CHAIR WILLIAMSON: Well, with the indulgence of all that are present, 824 I'd just like to wait, it's 8:30 by the clock on the back wall. I'd like to 825 continue this to 8:40. 826 (Recess taken.) 827 VICE CHAIR WILLIAMSON: I appreciate everybody's patience while we sought 828 the information that we needed to determine how best to proceed. So thank you for 829 that. 830 Mr. Foster, would you care to elaborate on what you found. 831 MR. FOSTER: Thank you for the brief recess. 832 Virginia Code Section 2.2-3112, paragraph C, addresses the very situation 833 that the BZA now finds itself. What it says is that if disqualification of an 834 officer in accordance with this section, which is effectively what happened with 835 Mr. Krasner's recusal, we have less than the number required by law to act, the 836 remaining members shall constitute a quorum for the conduct of business and have 837 authority to act by a majority vote. 838 So I think in light of this Code revision, the two of you do constitute a 839 quorum and do have the authority to go ahead and vote on the pending motion. 840 VICE CHAIR WILLIAMSON: Okay. Thank you. That sounds reasonable to me. 841 So I think again, I look at this and I think there is the same threshold 842 question that we heard about earlier. And I thought I heard you say, Mr. Maller, 843 that this was, you know, a similar issue. 844 MR. MALLER: Mr. Chairman, I think we've discussed the issues in question, 845 at least as far as I can recall them at the moment. 846 I did want to hear Mr. Foster say that Mr. Maller was right, that Mr. 847 Krasner's presence for the purpose of a quorum. I heard that between the lines. 848 But I did want to say that under 15.2.2309, notwithstanding the issues 849 raised in the motion, that this Board still has the duty to act. You know, for the 850 reasons we've already discussed. In case I didn't cite the statute, it's in the 851 packages that I've submitted, it applies to both of these cases obviously, that 852 under the State code this duty -- that this Board has a duty to essentially 853 supervise the Zoning Administrator and from the appellants' perspective that has 854 not been done here. There has never been a ruling on the merits of this issue by 855 this Board except a 2 to 1 decision in our favor which hardly seems like an 856 endorsement of his official conduct. 857 VICE CHAIR WILLIAMSON: Thank you. 858 MR. MALLER: Thank you. 859 VICE CHAIR WILLIAMSON: Okay. That brings this back to the same threshold 860 question. 861 Mr. Calabrese, if you have any comments. 862 MR. CALABRESE: I don't have anything further on the issue. I would make a 863 motion. 864 VICE CHAIR WILLIAMSON: Okay. 865 MR. CALABRESE: Make a motion not to hear Appeal application A1531-12 as -- 866 I'll amend that to say as a result of prior decisions by the Virginia Supreme 867 Court, I would make a motion for this Board not to hear Appeal application A1531- 868 12. 869 VICE CHAIR WILLIAMSON: Okay. 870 I'll second that and ask for a roll call vote. MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013 871 MR. WADE: Mr. Williamson. 872 VICE CHAIR WILLIAMSON: Yes. 873 MR. WADE: Mr. Calabrese. 874 MR. CALABRESE: Yes. 875 VICE CHAIR WILLIAMSON: Thank you, Mr. Maller. 876 Before we adjourn while we have the head of the Planning Commission present, 877 this is obviously an issue that is of interest to many people including people who 878 are not here tonight. But if you'd please give an update on where this particular 879 issue stands with the Council and Planning Commission, I think all of us present, I 880 know I will, find that helpful. 881 MR. SNYDER: Yes, Mr. Chair and members of the Commission and the public, 882 the City Council, Planning Commission held a joint worksession I believe the 1st of 883 October to discuss this issue. This was following the decision I believe of the 884 Supreme Court which kind of concluded an action on this ongoing court case. 885 One of the things that was clear in that discussion was that the lack of 886 clarity, the different interpretations as to what the Code says is really what's -- 887 is really the problem here. 888 And there was in 2006 I believe a proposed change of the Code which was not 889 acted on and so the City Manager along with the advice of the City Attorney and 890 myself, we recommended to the Council and the Commission that the thing we need to 891 do after looking at various options from leaving things where they are, to looking 892 at an administrative approach via the subdivision ordinance to stop the present 893 practice, that what was really needed was a clear change to the Code which would 894 make clear what the intent of the legislative body and the City was. 895 And so there was a draft recommendation of a change to the ordinance which 896 would prohibit houses which straddle lots from being taken down and then lots that 897 are left that are less than standard being able to have two houses put on them. 898 This was a draft. There was also a proposed date which was kind of a 899 placeholder of an effective date as to when this would take place. I think there 900 was recognition that there is probably some need, because of the debate in the 901 community and the ongoing activity, for there be some period of time for this to 902 take place. 903 The Council referred it to the Planning Commission for action and to take on 904 this role, so we'll be meeting with the Planning Commission to talk about putting 905 together some town hall, some hearings where people can voice their opinion, we can 906 get the discussion going and take it forward with a recommendation for the Council 907 at a first reading of the Planning Commission, to have a recommendation and Council 908 to take final action. 909 Not presupposing what that action will be, but we think clarity is needed, 910 some compromise so that we can sort out the ongoing projects that are going on but 911 put a stop to this ongoing method of development while letting those who are well 912 into the process complete those projects. 913 VICE CHAIR WILLIAMSON: Well, we appreciate that update. Thank you. 914 915 8. ADJOURNMENT: 916 917 VICE CHAIR WILLIAMSON: And this is the -- we come to the end of our meeting 918 agenda so we ask if there is a motion to adjourn. 919 MR. KRASNER: Move to adjourn. 920 MR. CALABRESE: Second. 921 VICE CHAIR WILLIAMSON: Okay. Roll call vote. 922 MR. WADE: Voice vote. 923 VICE CHAIR WILLIAMSON: Voice vote. 924 (A chorus of "ayes".). 925 VICE CHAIR WILLIAMSON: All right. Meeting adjourned. Thank you. 926 927 MINUTES OF THE 11 OCTOBER 2012 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 22 FEBRUARY 2013