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 5 JANUARY 23, 2013 6 7:30 P.M. 7 8 1. CALL TO ORDER: 9 10 CHAIR STOODLEY: The meeting of the -- it's actually 23 January. This was originally 11 scheduled from the 17th of January. Call to order and roll call. 12 13 2. ROLL CALL: 14 15 RECORDING SECRETARY: Mr. Stoodley. 16 CHAIR STOODLEY: Here. 17 RECORDING SECRETARY: Mr. Williamson. 18 MR. WILLIAMSON: Here. 19 RECORDING SECRETARY: Mr. Calabrese. 20 MR. CALABRESE: Here. 21 RECORDING SECRETARY: Mr. Krasner. 22 MR. KRASNER: Here. 23 24 3. PETITIONS: 25 26 CHAIR STOODLEY: Okay. Do we have any petitions? 27 MR. BOYLE: No, sir. 28 29 4. NEW BUSINESS: 30 31 a. Appeal application A1537-12 (MUNIS # 20121122) by Lan 32 Nguyen, owner of VA Restaurant Supply, Inc., (formerly 33 known as VA Grocery) appealing decision of the Deputy 34 Zoning Administrator to reject the occupancy permit 35 application 20120072 and "permit business to continue as 36 it has done for the past 17 years with City's knowledge", 37 on premises known as 311 South Maple Ave (a.k.a. 315 S. 38 Maple Avenue), RPC # 52-306-017 of the Falls Church Real 39 Property Records, zoned B-2 Central Business, said 40 property owned by JFX6, LLC. 41 MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 42 CHAIR STOODLEY: Move to New Business. 43 Now, before I swear the people in that, there has been some objections to my use of the term 44 "God" in the swearing. If anybody objects to that, I will certainly -- okay. None. 45 Anybody who's going to testify tonight to any subject, please stand. 46 (Witnesses sworn.) 47 CHAIR STOODLEY: The first is appeal application 48 A1537-12 by Lan Nguyen, owner of VA Restaurant Supply and formerly known as the VA 49 Grocery, appealing a decision of the Deputy Zoning Administrator to reject the occupancy 50 permit application 20120072 and to permit business to continue as it has done for the past 17 51 years with the City's knowledge on premises known as 311 South Maple Avenue. The RPC 52 number is 52-306-017 of the Falls Church Real Property Records, zone B-2 Central Business, 53 and said property owned by JFX6, LLC. 54 Mr. Boyle, do you have -- 55 MR. BOYLE: Mr. Chair, it's my understanding that the appellant and Mr. Wade have 56 reached an understanding of how to move forward and that there may be a request for a 57 continuance from the Board. 58 With that, I'll defer to Mr. Wade and then the appellant. 59 MR. WADE: Yes. Mr. Chair, the appellant's legal representation is here. The last week 60 we've had some e-mail exchanges. The owners of the business have agreed to come into 61 compliance with Code and in order to do that they're going to ask for a continuance tonight so 62 we have time to work out an agreement that's satisfactory with the City, just to make sure that the 63 violations don't continue and that we have verifiable agreement from both sides. 64 CHAIR STOODLEY: Would you state your name for the record. 65 MS. HICKMAN: Yes, of course. 66 CHAIR STOODLEY: And where do you come from. 67 MS. HICKMAN: Yes, my name is Gwen Hickman. I'm an attorney and I'm representing 68 the appellants here. The parties actually are here in court and it's true that we have reached 69 temporary resolution to try and resolve this matter, present it to the Board. 70 CHAIR STOODLEY: Okay. Are you going to hear it tonight or -- 71 MS. HICKMAN: Continuation please. 72 CHAIR STOODLEY: You understand a continuation will be granted with the following 73 restrictions: One is you must apply to the original order, you must comply with the original 74 order, and secondly, if there is anybody here tonight that can't be here next time, you will lose 75 them because we don't take any testimony pending resolution. 76 MS. HICKMAN: I understand. 77 CHAIR STOODLEY: You understand? 78 MS. HICKMAN: I do. Thank you. 79 CHAIR STOODLEY: Okay. Do we have a motion? 80 MR. WILLIAMSON: So moved. Motion to continue. 81 MR. CALABRESE: Second. 82 CHAIR STOODLEY: Roll call vote please. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013  83 84 RECORDING SECRETARY: Mr. Krasner. 85 MR. KRASNER: Yes. 86 RECORDING SECRETARY: Mr. Williamson. 87 MR. WILLIAMSON: Yes. 88 RECORDING SECRETARY: Mr. Calabrese. 89 MR. CALABRESE: Yes. 90 RECORDING SECRETARY: Mr. Stoodley. 91 CHAIR STOODLEY: Yes. 92 MR. BOYLE: Mr. Chair, that would be for the March 14th meeting, in the event that we 93 couldn't reach an understanding with the appellant. So it either will or will not appear for the 94 Board's agenda for March 14th. 95 RECORDING SECRETARY: March or February? 96 CHAIR STOODLEY: I don't understand that. 97 MR. BOYLE: Let's make that February 14th. 98 CHAIR STOODLEY: Okay. 99 RECORDING SECRETARY: They're both on the 14th. 100 MR. BOYLE: That's right. 101 MS. HICKMAN: Same time? 102 CHAIR STOODLEY: Correct. We start the meeting time promptly at 1930, 7:30 p.m. 103 MS. HICKMAN: Yes, sir. Thank you. 104 CHAIR STOODLEY: As I understand the variance application V153812 has been 105 withdrawn, is that right? 106 MR. BOYLE: That is correct. 107 CHAIR STOODLEY: Is there anybody here for that particular case? 108 MR. BOYLE: This is the variance application for Westmoreland, West Westmoreland. Is 109 anyone here for West Westmoreland? 110 CHAIR STOODLEY: And is anybody here for the V1538? 111 112 c. Variance application V1539-12 by Nicholas Draper to 113 allow a side yard setback of 6 feet rather than 10 feet 114 on the South (right) side of the property to provide for 115 a driveway on the North side that will enable off-street 116 parking and a safe playing environment for his children, 117 on premises known as 122 W Greenway Boulevard, RPC # 118 52-402-023 of the Falls Church Real Property Records, 119 zoned R1-B medium density residential, said property 120 owned by Emily Draper Revocable Trust. 121 122 CHAIR STOODLEY: Finally moving onto variance application V 1539-12 by Nicholas 123 Draper to allow a side yard setback of 6 feet rather than 10 feet on the south right side of the MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 124 property to provide for a driveway on the north side that will enable off street parking and a safe 125 playing environment for his children on the premises known as 122 West Greenway Boulevard, 126 RPC Number 524-402-023 of the Falls Church Real Property Records zoned R-1 B medium 127 density residential, said property owned by Emily Draper Revokable Trust. 128 Is the appellant here? 129 MR. DRAPER: Good evening. Nicholas Draper and Emily Draper. 130 CHAIR STOODLEY: Okay. Thank you. You've already been sworn in, right? 131 MR. DRAPER: Yes. 132 CHAIR STOODLEY: Okay. Mr. Boyle. 133 MR. BOYLE: Yes, sir. Mr. Chair, this is an application for a variance to assist in the 134 construction of a new structure and the concept is to relax the setback on one side sufficiently to 135 allow construction of a driveway in a manner that's keeping with an overlay district that Council 136 is going to be -- that we hope will be considering eventually. 137 Much of the neighborhood was built at a time that either predates the Code or the Code has 138 been changed since construction and this Board sees a number of applications for variance for 139 side setbacks or second floor construction. 140 In this case it's going to be new construction but they're hoping to obtain the setback that 141 we're looking for in the overlay district when and if it does go active, to shift the house to one 142 side to create more room for driveway and help facilitate off street parking. 143 And with that, I think I'll defer to the applicants for their presentation and any questions the 144 Board might have. 145 CHAIR STOODLEY: Okay. 146 Please go ahead. 147 MR. DRAPER: Good evening. 148 So we lived in the house from 2001 to 2006. We love Falls Church. We love the 149 neighborhood but we had our first child and we decided to move out west so we're in Loudoun 150 now. And to be honest, we miss it. 151 MS. DRAPER: Way west. 152 MR. DRAPER: Yeah, we're out past Dulles Airport. We miss it. 153 We want to get back but we can't afford to buy the house with the lot that we want back here 154 anymore. As everybody here knows, I'm sure they've appreciated quite significantly. 155 And in order to come back, and we're being selfish and we understand that, but we'd like to 156 create an environment that mirrors the way we live, which is the kids are outside a lot. They're 157 riding their bikes. I do a lot of furniture-type woodwork in the garage, for example, and things 158 like that. We want that kind of living space. 159 While we could rebuild the house in the footprint that it is currently and suit our living 160 needs, the house that we're going to build isn't much bigger than the footprint that's there 161 actually. We really want to use the full lot, the yard and the space that the house has. 162 In order to achieve that, we really need to put the garage in the back and create that useful 163 space behind the house. So the plan, we're not going to have a deck, just going to be glass on the MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 164 first floor and then there will be a patio off the lower level so we can really use the full yard and 165 the driveway that's there. 166 So that's the dream. It was actually started by our neighbor across the street who's lived in 167 her house 60 years and she's got a garage behind her house. And I shoveled her driveway many 168 a winter so I got to know it. And it's just a great space, it really opens up the back yard. 169 We do have the ability to drive a car down a ten foot setback but I think about once a month 170 the house would get hit by a car, is what it comes down to. It's just too narrow. So in order to do 171 that safely and create space that we need and not be scraping into the fence or the house, we 172 think a minimum of about 14 feet is what we need, something in that range. That obviously 173 creates a situation where the house has to move over on the lot. 174 So if we can do that, then we think everything else is easily workable. But that's been the 175 issue. 176 So we saw this memo back from November 2, 2011, where the Zoning Department 177 discussed the floating side setbacks for the first time and that's what inspired this. So we've been 178 working with the builder, had the plans drawn up, been working with the City and the Zoning 179 Office and here we are. 180 Now the neighbors who are impacted by it the most are Joan and Kevin who are here this 181 evening. So they're the ones that would be 6 feet away from our house essentially. So obviously 182 we need them before we moved. So we presented this to them and they're here this evening as 183 well so you can ask for their input. 184 That's it in a nutshell. That's the dream. 185 CHAIR STOODLEY: Thank you, sir. 186 MS. HURST: I'm Joan Hurst. We, of course, knew Nick and Emily when we moved in, 187 they already had moved into the house, and were great neighbors and have been very good 188 neighbors since in terms of choosing renters who live next to us. So we have no activity 189 problems and no wild parties. 190 So we're excited that they'll be back in the neighborhood. And what this creates for us in 191 addition to getting in the driveway is we have a single drive down because we have a shared 192 driveway. So we feel very good about that and think that the house they're going to build on the 193 property will also improve the quality of the neighborhood and actually selfishly help our home 194 values go up as well. And we get good neighbors back. 195 CHAIR STOODLEY: Thank you. 196 MR. HURST: I'm Kevin Hurst and I would just echo what my wife has said. Also to be 197 clear, the house would be 6 feet from the property line. 198 MR. DRAPER: Correct. 199 MR. WILLIAMSON: It's going to be in your yard. 200 MS. DRAPER: Close enough to borrow a cup of flour. 201 MR. HURST: As my wife mentioned, the current set up is that we actually have a shared 202 driveway with their house and so we do see a significant benefit in having their driveway moved 203 to the other side of the house, that we will have our own driveway. They've agreed to pay for the 204 cost of installing the new driveway for us. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 205 And I think aside from the intrinsic value of the privacy of having one's own driveway, I 206 think there actually is a safety issue here in the fact that we have two children, including a 4 year 207 old, they have two relatively young kids, and our kids do actually play in the front yard and there 208 are situations where having cars going in and out of a shared driveway does create a little more 209 of a safety issue. So we support their request for variance. 210 CHAIR STOODLEY: Thank you all for your testimony. 211 MR. CALABRESE: Under the ordinance there are several criteria we have to use in order 212 to grant a variance, we have to be satisfied. Two are probably relevant for the discussion here, 213 first of which is the undue hardship that would result if the variance were not granted. Number 214 two, and part of it has been answered by this testimony, is any detriment to other neighbors. 215 So the question would be so, and we can get to that in a second, but you're on one side. Is 216 there a neighbor, other neighbors on the other side and behind you? 217 For maybe the first one first, the undue hardship, if you could explain the undue hardship if 218 this were not to be granted. 219 MR. DRAPER: I think the simplest thing is being able to use the lot in the way that it's most 220 convenient for us. We'd like to be able to use the full lot. Without being able to put the 221 driveway on, we'd have to have a -- and this is the plan we built, we talked about this from 2004 222 on I think, but the plans all had two garage doors in the front of the house and they were very 223 ugly plans. They created a house and a yard that we couldn't use and let us not to ever go far 224 enough. 225 I've had several quotes but never get to this process because without being able to put the 226 driveway in, you can't use the lot properly, the way the grade in the lot exists. Really, we'd only 227 be able to use about 30 or 40 percent of the lot effectively if we did that. So that's probably the 228 biggest hardship, is the configuration of the lot and the ability to use it. 229 MR. CALABRESE: And then the issue of detriment to other neighbors. 230 MR. DRAPER: So Sue is on the other side and she -- I didn't have a conversation with her. 231 I knocked on her door but she wasn't there. She's a nurse for Kaiser. She would gain I would 232 think because the house would move farther away from her. So there's certainly no detriment 233 there. 234 MS. DRAPER: Well, also the physical landscape is she already has a driveway with a wall 235 so then our property is lower down on her side. So she's already got a wall between us, a county 236 wall or something. 237 MR. DRAPER: Which the City built a long time ago. It's about 4 feet tall. She's not on the 238 same elevation that we are. 239 MS. DRAPER: It wouldn't be the same elevation. So I feel like where in this case where 240 we have a shared driveway on this side, we're on the exact same elevation, with the exact same 241 piece of pavement, and there is no demarcation between our yard, where there would be that type 242 of -- 243 MR. DRAPER: There is no way to walk from our yard to her yard. You have to walk out to 244 the sidewalk to get there. I don't think there is any impact there. If anything, I think she benefits 245 from it. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 246 MR. CALABRESE: I have a question for staff. How about in the back, is there any issue 247 or? 248 MR. DRAPER: There is an electrical line running through the back. So it's not like a scenic 249 overlook where people spend a lot of time. So the back of these lots are kind of dead zones. 250 MS. DRAPER: They are. 251 MR. KRASNER: I think what he's getting at, there may be a shed there now, you're adding 252 a large garage. 253 Mr. Boyle, will the detached garage meet the accessory structure setback? I'm showing it 3 254 feet off the line. For a garage of that size, is that permitted? 255 MR. BOYLE: Yeah. Accessory structures are permitted 3 feet if they have a one hour fire 256 rated wall; 5 feet without. So if their intent is to build it to 3 feet, the building official would 257 require the fire rated wall. That is standard for a detached garage in our Code. 258 MR. DRAPER: And they have a shed back there, our back door neighbors that it would 259 face. So it would be wall to wall really. 260 MS. DRAPER: Shed back to back. 261 MR. CALABRESE: If I can ask one other question. So the other criteria we have to look at 262 is this a hardship not shared generally by others and can you address that in so much as we've 263 seen a memo which seems to indicate that other homes are having similar type issues or maybe 264 not. 265 MR. BOYLE: I'd say it's a similar configuration in the neighborhood but not throughout the 266 City in general. 267 One feature of this property would be that it's substandard for width. The Code today 268 requires 60 feet of width and this lot is only 50 feet. And to compute the setbacks we would take 269 20 percent of the lot width and in that case 20 percent of 50 feet is 10. This is the narrowest a lot 270 could be and still not get a setback reduction. A 60 foot lot is allowed 10 feet. This lot is 271 substandard for width yet its setback is still 10 feet. If it were narrower -- if it were less 272 conforming in width it would actually get a reduced setback. They're at the bare minimum before 273 we would reduce their setback. So with their 50 foot lot width they're still required to meet the 274 10 foot setback of the larger lots. 275 So that combined with the shared driveway configuration, you can see on the -- it would be 276 the south side of the property, the right hand looking at the plat, it's showing 8.2 feet. In reality I 277 doubt the driveway goes right up to the wall of the house. It's probably a good foot off the house 278 so that 8.2 foot setback on the right hand side of the existing house, in our experience the 279 driveway won't be directly abutting the house and so that actual width for car travel is probably 280 more like 7 or 6 and a half. 281 I think it would be within the Board's discretion to consider whether that shared driveway 282 constitutes a hardship. That is not something that's typically shared by houses in this 283 neighborhood. And the cost of, say, tearing that driveway out would impact them as well as their 284 neighbor. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 285 If 50 years ago folks agreed to put one driveway in and that worked, today if you wanted 286 your own driveway to use this property you'd have to demo from curb all the way up onto the 287 properties. 288 So I think those two things, I think it would be the worth the Board's consideration. The 289 narrowness of the lot that is still not sufficient to grant them a setback reduction and the shared 290 driveway, for them to park their vehicles in their own driveway would be a great expense on both 291 property owners there. 292 I hope that clarifies it. There are some features throughout the neighborhood that this lot 293 shares but it's definitely not shared throughout the City and the shared driveway between these 294 properties I think is unusual. 295 MR. CALABRESE: So there is a unique aspect to their situation. 296 MR. BOYLE: Yes. 297 MR. CALABRESE: Okay. 298 MR. KRASNER: I just have a couple questions for the applicant just for the record. So 299 today, the existing home today is shown at 8.2 off the -- 8.2 setback, so you're proposing 6 feet. 300 So in reality the change from existing conditions today to your proposed condition is from 8.2 to 301 6. 302 MR. DRAPER: Correct. 303 MR. KRASNER: 2.2 feet closer than it is today on that southerly side? 304 MR. DRAPER: Correct. 305 MR. KRASNER: The north side, you're now at 8.4 and you'll actually be pulling further 306 away. 307 MR. DRAPER: More than 14. 308 MR. KRASNER: So you're going to go from 8.4 to 14 on that side. 309 MR. DRAPER: Correct. 310 MR. KRASNER: Another question for you: Today how many off street parking spaces do 311 you have today? 312 MR. DRAPER: One. 313 MR. KRASNER: How many will you have if this was approved as you submitted it, how 314 many off street parking spaces approximately? You have the garage, the one car garage -- 315 MR. DRAPER: It's a two car garage so two parking spaces in the back. 316 MR. KRASNER: Two garage parking spaces. 317 MR. DRAPER: Correct. 318 MR. KRASNER: You now have a driveway heading back so if you had guests, you would 319 have significantly more room to accommodate guests. 320 MR. DRAPER: Correct. Five or six cars in the driveway, sure. 321 MR. KRASNER: As opposed to today where it sounds like more than one person comes 322 over, you have parking on street. 323 MS. DRAPER: And you're fighting for -- 324 MR. KRASNER: There is a problem with parking in the neighborhood. When I drove by 325 myself it seems that there is a little bit of crowding. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 326 MR. DRAPER: It's tight. You have to like your neighbors. You have to get along. 327 MR. KRASNER: So I think that's a significant improvement in that regard. 328 Question for Mr. Boyle, just to confirm, the impervious cover as proposed, that will 329 conform? 330 MR. BOYLE: Yes. 331 MR. KRASNER: I didn't see the number, the calculation listed, I just wanted to double 332 check that the proposed impervious cover, obviously it's a big increase from today. The lot, at 333 that size it seemed okay but I didn't see that calculation. I just wanted to double check. I know 334 that's something that would get caught in engineering but -- 335 MR. BOYLE: I think they're showing the building at 1307 on a 7250. Who has a 336 calculator? 337 Can we make that a condition if the Board moves forward? 338 MR. KRASNER: That's fine. I wanted to make sure we're not approving a plan that 339 somehow would inadvertently allow additional impervious -- 340 MR. BOYLE: The way forward here would be if they received this variance when they 341 submitted their -- 18 percent? Okay. The wonders of Smartphones. 342 18 percent plus probably the garage, let's do -- 343 MS. DRAPER: Garage is 420. 344 MR. BOYLE: 1307 plus 302 -- no, the 302 is the elevation. 420. 345 MR. KRASNER: I don't think Ches Bay, the process there, there's abilities to exceed the -- 346 MR. DRAPER: 23.821. 347 MS. DRAPER: Is garage plus building. 348 MR. DRAPER: So that's just building coverage. 349 MR. BOYLE: Yes. 350 MR. KRASNER: So it doesn't apply. 351 MR. BOYLE: Yeah, their way forward here if they received the variance when they 352 submitted the building permits, they go through the Chesapeake Bay Review and at that point 353 they'd either hold it to 35 or mitigate it. And the zoning piece of that is 25 percent under roof 354 which it does comply with now. 355 MR. KRASNER: I just wanted to confirm it. It looked like it was probably going to be 356 okay but again I just wanted to check. A tear down of a home on a small lot which we're all very 357 aware of. 358 MR. BOYLE: Yes, sir. 359 MR. KRASNER: That's it for me. 360 MR. WILLIAMSON: You mentioned grade. What's the -- is there a grading challenge? 361 MR. DRAPER: Correct. It drops, I'm guessing. 362 MS. DRAPER: Is this what that is right there, the 2 and the 3? No, that's not flood. 363 MR. WILLIAMSON: It sounds like that was creating some sort of challenge. 364 MR. DRAPER: I'm sure it's on here somewhere. I just don't know how to read it. We did 365 have the engineering done. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 366 MR. BOYLE: Yes, it's on the folded cover page. The engineer shows the elevations at 367 being 310 feet above sea level at the curb dropping down to 300 at the rear. So it's a 10 foot drop 368 from the curb to the rear. Is that consistent? 369 MR. DRAPER: It sounds about right. I was going to guess 8. 370 MR. WILLIAMSON: So there is also a need to have a structure designed to accommodate a 371 ten foot drop? 372 MR. DRAPER: Correct, which we have. 373 MR. WILLIAMSON: You've got a site that has a 10 foot drop, you've got a substandard lot 374 and you've got a shared driveway. Okay. Thanks. 375 MR. DRAPER: Thank you. 376 CHAIR STOODLEY: Thank you, Mr. Vice Chair. 377 I'm not satisfied that, as an individual, okay, I'm not satisfied you have sufficient hardship in 378 this particular case. The problem is, I have with hardship, I've been here 18 years and only 379 recently has the Supreme Court changed the definition of hardship. It used to be approaching 380 confiscation and it's no longer that. 381 But I have trouble with the setback. The problem I have is that it establishes a precedent for 382 the Board for the whole neighborhood and I'm not sure that the better way is not to go and get 383 the City Council to change the rule. We've had this so many times, people wanting to extend 384 their yards or I mean their buildings because of the setbacks, either front or side, and usually it's 385 not in back. 386 But anyway, the alternative you have is if you don't get variance here, is to go to the City 387 Council and get them to change the rules. They're changing their rules now. And that's certainly 388 an option for you. 389 I don't see any other way to put another drive in except on the right side of the house where 390 you have 14 feet, you will have 14 feet. But that's all I have to say. Thank you. 391 Do I have a motion? 392 MR. KRASNER: I think I'm ready to make a motion. 393 I think that I would make a motion -- before I make a motion I'll say that I think that the fact 394 that it's a preexisting nonconformity with respect to lot width is very relevant here. I think the 395 existing house today is preexisting nonconforming and the change, an additional 2.2 feet, I think 396 while not de minimus, I think the testimony we've received I think is balanced by some of the 397 benefits to allowing it. 398 I think in line again with this neighborhood which is full of substandard lots, I think it's a 399 solution that is workable for these lots until the City decides to potentially change the rules. That 400 may happen, that may not happen. 401 So with that as a preamble, I would make a motion -- 402 MR. CALABRESE: Before you make a motion, if I could just ask the petitioner, when I 403 asked the question about the undue hardship and I understand there's certainly some reluctance, 404 you used the word "more convenient." And if you would consider that the law requires us to 405 find this is something not getting into confiscation but pretty serious. This is a very, very serious 406 matter. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 407 So when others have come before this Board and said this is more convenient, it's easier, that 408 of course creates a difficulty for us. Because now we're having to adhere to a standard which 409 says this must be a very serious matter and then when petitioners say, well, it's just more 410 convenient, we're put into a bit of a bind. 411 Now Mr. Boyle identified some issues which sound to me a little more hardship-like. So I 412 don't know if maybe we can -- if you could describe those or maybe if you could describe them, 413 it might provide some more comfort. 414 MR. DRAPER: I have a British upbringing so I tend to be understated. I apologize for that. 415 I think that the key here is that we're not able to rely on the one parking space and use the 416 home effectively and the lot effectively with the family. We have the obstacle of the single 417 parking space, we have the obstacle of the shared driveway. 418 The house itself is not much larger than the house that's there now. We're not trying to build 419 something big, we're a couple percentage under the current limit. And they're proposing to 420 expand that to 30 percent I believe as part of this. 421 So we're not trying to build a big house. What we're trying to do is to work within the 422 confines of the lot that we have, the substandard lot. The slope and elevation of the lot, the 423 shared driveway. And to find a way to combine all those things, those hardships into the ability 424 to use the lot and redevelop a home there that we can enjoy. 425 MR. CALABRESE: Could somebody expand on the driveway issue again. Can you 426 describe that to me again. 427 MR. BOYLE: Yes. The existing house is shown approximately 8 feet off the line and 428 typically the driveway won't be that full width. It won't -- it either won't actually contact the 429 house or isn't functional. You can't pull that close to the house. 430 So the effect of driveway on their property is probably more like 6, 6 and a half feet. And 431 that's the lay of the land out there which was not a self-imposed hardship. It probably was 432 informally done between neighbors 30, 40 years ago. And to give them their own driveway 433 would impact not just their cost and construction but the neighbors would have to agree to it. 434 That is one feature that I don't think is widely shared. The lot width is common in that 435 neighborhood, not throughout the City but in that neighborhood. The idea of a shared driveway 436 is definitely not a common feature in that neighborhood. 437 So maybe not more convenient but would grant a relief from all of these features that are 438 present on this lot. That I think is not generally shared throughout the neighborhood. 439 CHAIR STOODLEY: Thank you, Mr. Boyle. 440 Any other questions by members of the Board? 441 MR. KRASNER: Again, I think those are all very valid points. I'll stress again the fact it's a 442 pre-existing, nonconforming lot with respect to width and we're talking about a side yard 443 variance specifically is significant. 444 Again as I said, it's a pre-existing, nonconforming. They're actually moving a 445 nonconformity on the northerly lot, on the northerly side, while they're slightly worsening one on 446 the south, they're removing one on the north, I think that is a mitigating factor as well. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 447 And again, adding additional off street parking I think is a benefit. You have testimony on 448 the record from neighbors to the south most immediately affected. They're not opposing the 449 application. 450 So with that, I would make a motion that we approve Variance Application V1539-12 to 451 allow a side yard setback of 6 feet on the south side of the property. I would again add a 452 condition that they comply with the applicable impervious cover requirements. 453 And I don't know if anybody wants to add any additional conditions but I'll put that out there 454 as a motion and ask for a second. 455 MR. CALABRESE: Second. 456 CHAIR STOODLEY: We have a motion. Let's have a roll call vote. 457 MR. KRASNER: Is there any discussion -- before we vote, is there any other discussion on 458 my motion, anything anybody else wants to add as far as condition or -- 459 MR. WILLIAMSON: I think before I vote I would just like to point -- I would just like to 460 state I see a combination of factors involved here. So I mean it's not like any one. There is a ten 461 foot drop that may be shared by others. There is a substandard lot configuration, we've 462 established that there are others, there may be others. There is a shared driveway. We've 463 established that is very uncommon. 464 So what we're dealing with is a, in my view, is a peculiar set of factors that this Board would 465 have to decide if that combination of factors creates that undue hardship. So I think that's how I 466 view this. 467 MR. CALABRESE: Further discussion, I agree, any case is not clear cut. So on the one 468 hand it does sound like some of these features may be shared by other properties and the memo 469 would identify that. 470 On the other hand, on an equitable basis the most beneficial use of this property would 471 appear to be to grant the variance because of this unique -- appears to be a unique situation. So it 472 is a balancing of those factors we have to consider. 473 CHAIR STOODLEY: We're in the process of voting. 474 Roll call. 475 RECORDING SECRETARY: Mr. Williamson. 476 MR. WILLIAMSON: Yes. 477 RECORDING SECRETARY: Mr. Stoodley. 478 CHAIR STOODLEY: Yes. 479 RECORDING SECRETARY: Mr. Calabrese. 480 MR. CALABRESE: Yes. 481 RECORDING SECRETARY: Mr. Krasner. 482 MR. KRASNER: Yes. 483 CHAIR STOODLEY: Okay, all four. That's good for you. 484 MR. DRAPER: Thank you very much. 485 CHAIR STOODLEY: I hope that you enjoy the property. 486 MR. DRAPER: We look forward to coming home. 487 MS. DRAPER: Yeah. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 488 CHAIR STOODLEY: We love to have you. It's great. 489 MR. DRAPER: Thank you very much. Have a good evening. 490 491 5. APPROVAL OF MINUTES: 492 493 CHAIR STOODLEY: Do you have the minutes? 494 RECORDING SECRETARY: We did minute's approval, all the approval of minutes by e- 495 mail. So we're all caught up with that. 496 MR. WILLIAMSON: Did you receive a sufficient number of responses to the e-mails in 497 order to get them approved because I admit that I have not followed up. 498 RECORDING SECRETARY: I may be short and I have to go back and do -- I have 499 received some responses. I don't know if I've quite got there yet but I'll go through in e-mail 500 again, if I need to. If everybody could resend their approvals, that would be great for all the 501 minutes that we sent out a few weeks ago. 502 MR. WILLIAMSON: Right. 503 504 6. OTHER BUSINESS: 505 ANNUAL ADOPTION OF RULES OF PROCEDURE 506 507 CHAIR STOODLEY: Okay. The other business, Annual Adoption of Rules of Procedure. 508 Does anybody have any proposed changes? Procedures? I need a motion to continue the current 509 rules. 510 MR. WILLIAMSON: I would move to continue the current Rules of Procedure for the 511 Board of Zoning Appeals. 512 MR. CALABRESE: I haven't been involved as long as others have. Have there been issues 513 that have risen that require -- 514 MR. WILLIAMSON: Not this year. In the past there were. 515 CHAIR STOODLEY: In the past, yes. 516 MR. WILLIAMSON: There were clarifications we sought to make based on the timing of 517 when things were submitted, to clarify that, if I remember correctly. 518 CHAIR STOODLEY: Mr. Boyle, do you have anything to throw in the pot? 519 MR. BOYLE: Staff is considering some proposal to review the -- to revise the Rules of 520 Procedure but we're not prepared to present those tonight. We may bring that question back up. 521 MR. WILLIAMSON: So then I would amend my motion so that I would move to adopt the 522 Rules of Procedure contingent upon a further recommendation that staff wants to make. We 523 need Rules of Procedure to operate so I would say we move to approve now. 524 CHAIR STOODLEY: Second? 525 MR. KRASNER: Second. 526 CHAIR STOODLEY: Roll call vote please. 527 RECORDING SECRETARY: Mr. Stoodley. 528 CHAIR STOODLEY: Yes. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 529 RECORDING SECRETARY: Mr. Williamson. 530 MR. WILLIAMSON: Yeah. 531 RECORDING SECRETARY: Mr. Krasner. 532 MR. KRASNER: Yes. 533 RECORDING SECRETARY: Mr. Calabrese. 534 MR. CALABRESE: Yes. 535 536 ELECTION OF CHAIRMAN AND VICE CHAIRMAN 537 538 CHAIR STOODLEY: Okay. Election of chairman and vice chair. Both myself and the 539 vice chair are second year, not a third year. That's FDR. 540 Anyway, we certainly have ability to entertain other nominations for president -- I mean for 541 chairman and vice chair. Do we have any of those? 542 Okay. Do we have a proposal: Elect or reelect? 543 MR. KRASNER: I'll move that we -- we have to nominate both persons. We have to 544 nominate separately or together? 545 RECORDING SECRETARY: One person, one board member can nominate. 546 MR. KRASNER: Chair and vice chair. 547 RECORDING SECRETARY: They'll do two separate motions. 548 MR. KRASNER: Two separate motions, okay. 549 First we'll do chairman, so I'll nominate Mr. Stoodley to serve as chairman for the year of 550 2013 for the Board of Zoning Appeals. 551 MR. CALABRESE: Second. 552 CHAIR STOODLEY: All in favor? 553 (Upon voice vote, the motion passed unanimously.) 554 CHAIR STOODLEY: Okay. Vice chair. 555 MR. CALABRESE: I nominate Mr. Williamson to be the Vice Chair for the BZA. 556 MR. KRASNER: Second. 557 CHAIR STOODLEY: All in favor. 558 (Upon voice vote, the motion passed unanimously.) 559 CHAIR STOODLEY: Hearing no nays, so I'll continue for chair as a year and Mr. -- vice 560 chair will be Mr. Williamson. 561 562 ELECTION OF RECORDING SECRETARY 563 564 CHAIR STOODLEY: Election of Recording Secretary. I would propose Mr. Wade. 565 MR. WILLIAMSON: I would second that. 566 CHAIR STOODLEY: All in favor of that, Mr. Wade. 567 (Upon voice vote, the motion passed unanimously.) 568 CHAIR STOODLEY: No wait. 569 MR. WILLIAMSON: No one could do it as well. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 570 571 7. OLD BUSINESS: 572 573 CHAIR STOODLEY: Old Business. I don't have any Old Business. 574 575 I just want to say one thing. That one of the other considerations about variances other than 576 undue hardship and everything else is whether or not they were -- they bought the lot and knew 577 that they were in trouble as far as expansion. 578 In other words when you buy a lot in this city, the first question -- first person you should 579 visit is Mr. Boyle or Mr. Wade because they'll tell you whether you have a problem or not. 580 And so many people buy without considering against that opinion. The other opinions were 581 addressed were persuasive. 582 MR. CALABRESE: If I can comment on that, I share your concern. And I'm as the lawyer, 583 I always like to see everything neat. And so many times we've had individuals come up here and 584 while there may be an undue hardship, they don't express it very well. 585 CHAIR STOODLEY: That's right. 586 MR. CALABRESE: I've heard the word convenient used many times in these presentations 587 and they don't realize what they're doing. But then that right away says to me this would be nice, 588 this is better, the other options don't look as pretty. And so I suppose there is nothing else to do 589 or you folks can prepare them to let them know that they have to -- 590 MR. KRASNER: Yeah, I think there is two ways that we can try to work on that. I mean, 591 sometimes I try to do it myself, you may notice that I almost try to lead them to it by asking them 592 questions yes or no to get it on the record. When I see they actually do have a hardship even 593 though they themselves don't recognize that. 594 A question for you guys: Do you distribute any type of information, for example, maybe 595 like an excerpt from Virginia Code that defines hardship? 596 RECORDING SECRETARY: Yeah, that is something that we started doing in the last six 597 months. We actually let them know what the qualifications for the variance to be approved are 598 and we -- it's an ever-evolving process but we try to give them all the information that they need 599 to be successful because they obviously most times have not been in front of the Board before, 600 don't know what to expect and don't know what the criteria are. So now they are being given a 601 lot more information than before. So we try to help them. 602 CHAIR STOODLEY: That is great. Great. 603 MR. BOYLE: We also in talking with the folks quite often the reason for the variance is 604 raised by staff. We get a lot of applications that come in and this is what they would prefer to do 605 and they think either we can just okay it or they'll go for a variance and we'll let them know, 606 they'll ask about the variance process and we'll let them know that, given the history the Board is 607 somewhat likely to approve it if you meet the criteria or it's a non-starter. 608 And the folks that get to the Board, first and foremost anyone has the right to petition their 609 Board so we would not refuse to send anyone here. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 610 But typically the people that come before you have already worked with staff to try and fit it 611 in some other way. And we don't preach the confiscation level any more officially but we sure 612 hold them to that test. If this can be done any other way, they need to consider it. 613 This one was, yeah, I agree, they didn't quite use the right -- when we spoke with them we 614 let them know that they want to know what is different about this lot compared with your 615 neighbors and what's the hardship. But under today's standards what is peculiar to your lot. 616 And so we don't coach them but we let them know what the burden is and we try to 617 discourage applications because they just want to roll the dice. 618 So when they get here, they're presenting a project that obviously they would prefer to 619 present but also really can't be revised down because of the peculiar features of the property. So 620 we do a little screening on our part. 621 MR. WILLIAMSON: Is the Council going to solicit input? Perhaps they already have from 622 the BZA on this proposal, because I mean it's a floating proposal, that's a very interesting 623 concept and obviously we need to support a particular situation here. But I mean if that became 624 the rule, I mean that could affect a large number of homeowners. Suddenly they'll be a lot 625 closer. 626 MR. CALABRESE: Is this proposal to the previous -- 627 MR. WILLIAMSON: Yeah, you can have a floating side yard. 628 MR. BOYLE: Yeah, it's come to be known as the Greenway Downs overlay. Greenway 629 Downs is the subdivision. It would not be city-wide. It would be a large piece of the City, 630 running off of South Washington and Greenway, Marshall, the streets through there, the 7- 631 Eleven, in that stretch. 632 There's quite a history on the ground. The original subdivision literally from farm fields was 633 done in 1929 and immediately thereafter the stock market crashed and so the lots were created 634 and not a single house was built until the Pentagon went up and then the whole neighborhood got 635 built literally overnight. 636 But the original 1929 subdivision called for a 20 foot front yard setback with only 50 foot 637 wide lots and 6250 in area. So they were nonconforming. 638 MR. WILLIAMSON: Were you around for that? 639 MR. BOYLE: I actually was, yeah. 640 So the Greenway Downs neighborhood has these peculiar features. They're nonconforming 641 for front yard, for width, and for area. And some of the streets are even built narrower than we 642 would have today and I think this was one of them. 643 So the concept was, here's this neighborhood that we could give relief to that the Board is 644 seeing all these variances on. And it will be, I think it will be transform the neighborhood if 645 Council adopts it, it will a huge impact on folks. 646 It's at the worksession stage. It's just been given a date to be heard by Council informally. If 647 they agree to take it up, they'll send it up to Boards and Commissions for comment and it will go 648 to this Board and the Planning Commission and a few others. And there is specific set of 649 parameters that they have to meet to be eligible for this but we hope it will grant some relief. MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 650 Whenever we see a flurry of variance requests, that tells us that the Code is wrong so we're 651 trying to massage the Code to reflect how this neighborhood was constructed. And that's the 652 intent but it will be back before you for comment. 653 MR. WILLIAMSON: Okay. Great. Thanks. 654 CHAIR STOODLEY: John, if the law -- if that were passed into law, you could 655 automatically grant the variance, right? 656 MR. BOYLE: Yeah, they'd no longer be variances. They'd be by-right setbacks and it's 657 going to include a reduced building height because -- to reflect the size of the lots. We're going 658 to increase the lot coverage but hold the impervious coverage. We don't want a neighborhood of 659 garage doors out on the streets. So we're going to have the garages in the rear yard. 660 MR. KRASNER: It's still going to a different setback though, right? You're not going to go 661 down to zero lot line. 662 MR. BOYLE: Right, we're going to formalize the 20 foot building restriction line that the 663 developer or the subdivider -- 664 MR. KRASNER: On the side yards, it will float, it will still be a minimum. 665 MR. BOYLE: Yeah, I think it's -- the current one is 7 feet that's up for discussion. So it has 666 to add up to what, 17 feet total, 10 on one side and 7 on the other. 667 But that's part of the discussion. What's the right number? The fire marshal would like to 668 see on the short side, he'd like to see fire-rated materials instead of combustibles. And it's -- 669 there's a lot of interesting pieces of it that I think if it's done correctly we may see a makeover of 670 that neighborhood. 671 The construction that's there now, you might recall the Goyonaga case that was here. He 672 had one of these houses, cinder block construction. They all were built, if you went down that 673 street, we have pictures from the 40s where the entire street is under construction at the same 674 time. True cinder block construction compacted at the scene when they're in the field when 675 they're building these things. This guy's house is still in tact and is well built. The one next to it 676 is crumbling because of the shoddy workmanship of the cinder block. 677 So and cinder block walls can't be added onto or expanded. You can't run air conditioning 678 ducts. You can't run cable wire. So the houses are pretty much frozen in their nonconforming 679 status with cinder block construction. 680 We're hoping to see, it's the only neighborhood in town that hasn't really gone through a 681 makeover and we're hoping this Code will eliminate the need for the variances that we see and 682 maybe spur some redevelopment. 683 We get a lot of requests from people that say we want to live here, we want to keep this 684 house but we really can't. It's a cinder block box. And so we're hoping this will give them some 685 relief. Less work for the BZA. But you'll be included in the conversation. 686 CHAIR STOODLEY: Anything else? 687 688 8. ADJOURNMENT 689 690 CHAIR STOODLEY: Motion to adjourn? MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013 691 MR. WILLIAMSON: So moved. 692 MR. CALABRESE: Second. 693 CHAIR STOODLEY: All in favor? 694 (Upon voice vote, the motion passed unanimously.) 695 CHAIR STOODLEY: Thank you, guys. 696 MR. CALABRESE: Thank you. 697 Respectfully submitted, Noted and Approved 698 MINUTES OF THE 23 JANUARY 2013 MEETING OF THE BOARD OF ZONING APPEALS APPROVED 11 APRIL 2013