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 December 12, 2013 6 7:30 P.M. 7 8 1. CALL TO ORDER: 9 10 VICE CHAIR WILLIAMSON: I'd like to call to order the December 12, 11 2013, meeting of the Board of Zoning Appeals. 12 Call this to order. If I could ask for roll call please. 13 14 2. ROLL CALL: 15 16 RECORDING SECRETARY: Mr. Stoodley. 17 (No response.) 18 RECORDING SECRETARY: Mr. Williamson. 19 MR. WILLIAMSON: Here. 20 RECORDING SECRETARY: Mr. Calabrese. 21 MR. CALABRESE: Yes. 22 RECORDING SECRETARY: Mr. Krasner. 23 MR. KRASNER: Here. 24 RECORDING SECRETARY: Mr. Sze. 25 MR. SZE: Here. 26 RECORDING SECRETARY: And Mr. Howell. 27 MR. HOWELL: Here. 28 29 3. PETITIONS: 30 31 VICE CHAIR WILLIAMSON: Before we move into New Business, are there 32 any petitions from the audience? 33 Seeing none, we'll move into New Business. 34 35 4. NEW BUSINESS: 36 37 a. Appeal application A1533-13 by Stephen Hiscott appealing a 38 determination by the Zoning Administrator that two portions of the property 39 known as parcels "A" and "B" cannot be developed, on premises known as 405 40 Van Buren Street, RPC #53-101-128 of the Falls Church Real Property 41 Records, zoned RA-A low-density residential, said property owned by Stephen 42 and Debora Hiscott. 43 44 VICE CHAIR WILLIAMSON: Let me first make a note that the Appeal 45 Application A1553-13 by Stephen Hiscott appealing a determination by the 46 Zoning Administrator by request of the applicant who indicated he would be 47 out of town I believe, that matter has been continued until next month. 48 49 b. Appeal application A1554-13 by Donald Elthon, owner of 50 Elthon Enterprises, appealing the revocation of a Certificate 51 of Occupancy for a Minor Home Occupation by the Deputy Zoning 52 Administrator, on premises known as 404 East Broad Street, RPC #53-120-036 53 of the Falls Church Real Property Records, zoned R1-A low-density 54 residential, said property owned by Donald and 55 Brenda Elthon. 56 57 VICE CHAIR WILLIAMSON: Moving onto the next item of New Business,  58 Appeal Application A1554-13 by Donald Elthon, owner of Elthon Enterprises, 59 appealing the revocation of a Certificate of Occupancy for a Minor Home 60 Occupation by the Deputy Zoning Administrator on premises known as 404 East 61 Broad Street, RPC #53-120-036 of the Falls Church Real Property Records 62 zoned R1-A, low density residential, said property owned by Donald and 63 Brenda Elthon. 64 If I could ask the applicants to please step forward. I'd like to 65 ask -- you can step up to the table. And actually if you can go ahead and 66 just sign in. 67 MR. ELTHON: Sure. 68 VICE CHAIR WILLIAMSON: If I could ask anybody who's going to be 69 speaking on this matter, who intends to speak on this matter tonight, to 70 stand and raise their right hand to be sworn in. 71 (Witness sworn.) 72 VICE CHAIR WILLIAMSON: Thank you. All right. Before we -- have a 73 seat. 74 MR. ELTHON: Thank you. 75 VICE CHAIR WILLIAMSON: Thank you. 76 So before we hear from the applicant, I think what we'd like to do 77 is just get a report from staff and we'll turn it over to you. 78 MR. ELTHON: Thank you. 79 MR. WADE: Mr. Chair, mid September, give or take, I received a 80 report from one of our building inspectors who was inspecting an open 81 permit on Mr. Elthon's property on East Broad Street, that there was a 82 business being conducted at the property. And so the inspector inquired as 83 to whether the owner had a Certificate of Occupancy as properly documented 84 with the City as having a home business. 85 The inspector reported to me that it appeared that Mr. Elthon was 86 producing items and that I think he actually spoke to Mr. Elthon about it 87 and Mr. Elthon said that he produced some items for the U.S. government and 88 the military. It's unclear exactly what he was producing. So I contacted 89 Mr. Elthon. 90 The explanation I got from Mr. Elthon sounded like he produced small 91 items that didn't sound like they were very significant. It seemed to 92 sound like it was within the definition of a Minor Home Occupation for 93 Small Business and it sounded like occasionally there might be a little bit 94 more noise or something, a little, you know, something you might not 95 normally see at the house. But it sounded like to me, I got the impression 96 that it was rare and it was something that didn't seem to disturb the 97 neighbors. 98 So we had Mr. Elthon apply for an occupancy permit. It was actually 99 approved by the zoning office -- let's see what day it was -- on November 100 20th but wasn't actually approved by the Public Works Department until 101 October 3rd. And by that point we had received enough complaints from 102 neighbors in comments that seemed to conflict with what Mr. Elthon was 103 reporting to me. 104 Indicated that they were, neighboring properties were saying we're 105 hearing lots of noise, some welding that they saw outside. They would see 106 -- there were complaints about large plumes of spray paint that they would 107 see on a regular basis floating over their yard. So this is from more than 108 one neighbor. And from what I gathered from that new information, I felt 109 that the business no longer fit the description of a Minor Home Occupancy 110 so I informed Mr. Elthon that I would have to revoke the CO for that. It 111 just didn't appear to be the type of business that was suitable for 112 residential zoning. 113 VICE CHAIR WILLIAMSON: Okay. All right. Any question -- any 114 clarifying questions of staff? We'll get into the substance of this after 115 hearing from the applicant. 116 Any clarifying questions on this at all? 117 MR. CALABRESE: Just quickly, December 3rd the certificate was 118 effective and you revoked it on what date? 119 MR. WADE: On the same date. 120 MR. CALABRESE: On the same date? 121 MR. WADE: Correct, correct. It just takes a little while to get 122 through the process because the Public Works Department has to do a review 123 for some purpose of every Certificate of Occupancy. So it actually is 124 approved by Zoning on November 20th so there was a little bit of lag time. 125 MR. CALABRESE: Okay. 126 MR. KRASNER: I imagine you visited the property and can you talk of 127 any times you visited the property, what, if anything, you observed? 128 MR. WADE: I did not visit the property myself but we had an open 129 building permit on the property so I requested that the -- I got my 130 information from our building inspector. And from what he reported from 131 his regular visits to the property, I didn't feel it was necessary, I felt 132 I was getting enough information from my standpoint. 133 MR. KRASNER: Okay. 134 VICE CHAIR WILLIAMSON: Anything else? 135 Okay. Mr. Elthon. 136 MR. ELTHON: Sure. Let me identify myself first. My name is Don 137 Elthon. I'm the homeowner along with my wife Brenda, at 404 East Broad 138 Street. I'm also the owner and sole proprietor of a business known as 139 Elthon Enterprises which is a veteran-owned small business. I've been in 140 business for 12 years. 141 I want to take actually quite strong exception to a couple of 142 statements just made here, about the so-called underlying facts here. 143 First of all, he did not contact me, I contacted him. Absolutely 144 clear. 145 Second of all, the initiation for this activity was not as stated 146 previously. It was not part of a routine inspection by the building 147 inspector. It was complaints from a neighbor. That may work for me, it 148 may work against me. But the facts are not correct as stated here. 149 There were complaints from a neighbor. The building inspector, Mr. 150 McDonald, came out and he came there not for the purpose of any normal 151 building inspection but to perform an inspection on the property related to 152 the complaint. 153 Third thing. I filed for and paid for an occupancy permit, not only 154 at the time in which he cited but 12 years ago. And those are in the 155 City's files. So if there is somehow an application that I was operating a 156 business on the sly without a proper occupancy permit, that implication is 157 just simply false. Absolutely false. 158 I would welcome you to pull out the files. If you don't have them, 159 what I do have in my own files are two documents. One, the application, 160 two, the City took my money. I've never been issued a permit but Tom 161 Clinton stopped out at my office about two hours -- two years after that 162 and said we have a huge mess, we can't get it. We're going to get you that 163 Certificate of Occupancy soon. It never materialized. 164 Have I ever acted in bad faith on this at any point in time? Have I 165 ever tried to deceptively keep this business practice from the City as 166 implied here? The answer is no. And I actually really take pretty strong 167 exception to that. 168 I would also note and in my conversation, the first conversation 169 that we had in which we talked about the nature of my business, that he 170 drew the conclusion that the claims made by homeowners were exaggerated or 171 false. That was his conclusion, not mine. 172 Well, I've had a number of interactions with the zoning office over 173 the last couple of months. I think what I would have to conclude at the 174 end of that is that -- well, actually let me read a small statement. 175 I've had a number of interactions with the Falls Church Zoning 176 Division over the last two months. And I've come to conclude that they 177 make rash decisions and have little regard for due process or avoidance of 178 conflict of interest. Consequently, I have no further interest in 179 discussions with the Zoning Division or continuing to operate my business 180 in the City of Falls Church. I hereby withdraw my appeal effectively 181 immediately. 182 I'm sorry that you came out on a cold night but frankly, this 183 conduct of the City is just simply appalling. 184 VICE CHAIR WILLIAMSON: So just to confirm it, Mr. Elthon, you're 185 withdrawing -- you're withdrawing your appeal of this A1554-13? 186 MR. ELTHON: Yes, I am. 187 VICE CHAIR WILLIAMSON: Okay. All right. Any questions or comment 188 from the Board? 189 MR. KRASNER: So you understand by withdrawing your appeal, you're 190 accepting the determination of the Zoning Administrator that you do not 191 have a legal home -- Minor Home Business? 192 MR. ELTHON: My understanding is exactly I think as you describe it, 193 which is my business is over in the City of Falls Church. I will track 194 down my business license sometime between now and Monday. I haven't seen 195 it in a couple of months but I know where it is. And I will mail it in to 196 the City. I'm through doing business here. 197 VICE CHAIR WILLIAMSON: Okay. Our powers pertain solely to the 198 Zoning Code so we wish you good luck, sir. 199 MR. ELTHON: I've got a great life, believe me, I've got a great 200 life. I'm glad to have these people out of it. 201 VICE CHAIR WILLIAMSON: Okay. The applicant was -- it was explained 202 to the applicant what it meant to revoke his appeal as that matter of New 203 Business is now done. 204 And there are no other matters of New Business left. 205 We have the approval of minutes from the September 12, 2013, 206 meeting. 207 And let me just -- let me just turn to staff here for a minute 208 before we move on to the next item. The applicant has withdrawn his 209 appeal. We've explained to him what that means. I take this matter to be 210 closed. I don't think there's any other procedural things that need to be 211 done, is that correct? 212 MR. BOYLE: I believe that's correct. 213 VICE CHAIR WILLIAMSON: Okay. Thank you. 214 215 5. APPROVAL OF MINUTES 216 217 Discussion of minutes from the September 12, 2013 BZA 218 219 VICE CHAIR WILLIAMSON: Okay. We can move onto the next item, which 220 are our favorite thing to do which are approving the minutes from September 221 12. 222 (Whereupon, the minutes were reviewed.) 223 VICE CHAIR WILLIAMSON: Okay. Is there a motion to approve? 224 MR. KRASNER: We move to approve the minutes of September 12, 2013. 225 VICE CHAIR WILLIAMSON: Is there a second? 226 MR. CALABRESE: Second. 227 VICE CHAIR WILLIAMSON: All in favor? 228 (A chorus of "ayes".) 229 VICE CHAIR WILLIAMSON: So moved. 230 That's it for minutes. 231 232 6. OTHER BUSINESS: 233 234 VICE CHAIR WILLIAMSON: I see we have one item of Other Business. 235 Mr. Sze, would you care to address this item? 236 MR. SZE: Thank you, Mr. Chairman. 237 I am presenting a letter to the City of Falls Church Virginia Board 238 of Zoning Appeals. Let me just read it out loud for the record. 239 Honorable Chairman Howard Stoodley and Honorable members, Mr. John 240 Boyle, Mr. Brandon Wade, I hereby tender my resignation from the City of 241 Falls Church Virginia Board of Zoning Appeals, BZA, effective on the last 242 day of December 2013, pursuant to Virginia State Code, Section 15.2-2308, 243 entitled Board of Zoning Appeals to be created, memberships, organizations, 244 etcetera. The Code states that, A, in its relevant portion, that members 245 of the Board -- excuse me -- shall hold no other public office in the 246 locale except that one may be a member of the local planning commission. 247 My resignation is therefore a condition of holding a position on City 248 Council commencing January 1, 2014. 249 I've enjoyed my time here on the Board. Would have nothing but the 250 highest esteem and regard for all of you on the BZA who've chosen to 251 selflessly serve our City and further nothing but appreciation for the work 252 of the staff of the BZA. 253 Best wishes to all of you for continued presence and good work. 254 Sincerely yours. 255 VICE CHAIR WILLIAMSON: Well, Mr. Sze, we thank you for your kind 256 words and for your service to the Board and we wish you well in your 257 continued service of the City in your new role beginning next month. 258 MR. SZE: Thank you. 259 VICE CHAIR WILLIAMSON: Okay. 260 261 7. OLD BUSINESS: 262 263 VICE CHAIR WILLIAMSON: Old Business. Seeing no Old Business. 264 265 8. ADJOURNMENT: 266 267 VICE CHAIR WILLIAMSON: Is there a motion to adjourn? 268 MR. SZE: I move to adjourn. 269 VICE CHAIR WILLIAMSON: Second. 270 MR. KRASNER: Second. 271 VICE CHAIR WILLIAMSON: All in favor? 272 (A chorus of "ayes"). 273 VICE CHAIR WILLIAMSON: Okay. I guess I will declare this meeting 274 of the Board of Zoning Appeals concluded. We're adjourned. 275 276 277 278