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 September 11, 2014 6 7:30 p.m. 7 8 1. CALL TO ORDER 9 10 CHAIR WILLIAMSON: Captain Stoodley tells me it's 7:30 so I'd like 11 to call to order the regular meeting of the Board of Zoning Appeals for the 12 City of Falls Church for September 11, 2014. 13 If I could ask for a roll call please. 14 15 2. ROLL CALL 16 RECORDING SECRETARY: Mr. Williamson. 17 CHAIR WILLIAMSON: Here. 18 RECORDING SECRETARY: Mr. Krasner. 19 MR. KRASNER: Here. 20 RECORDING SECRETARY: Mr. Stoodley. 21 MR. STOODLEY: Here. 22 RECORDING SECREARY: Mr. Calabrese. 23 (No response.) 24 RECORDING SECRETARY: Mr. Howell. 25 MR. HOWELL: Here. 26 RECORDING SECRETARY: Thank you. 27 CHAIR WILLIAMSON: Okay. Thank you very much. 28 29 3. PETITIONS 30 31 CHAIR WILLIAMSON: The next item on the Agenda would be Petitions. 32 Are there any petitions from the public this evening? 33 Yes, sir. 34 We'll need you to step forward here and sign in and state your name 35 and you get to say your name and your address. 36 If you would ask the deputy to do that, I'm going to swear you in. 37 MR. LAUDERDALE: Okay. 38 CHAIR WILLIAMSON: If you could state your name. 39 MR. LAUDERDALE: My name is Steve Lauderdale. 40 CHAIR WILLIAMSON: Okay. 41 (Witness sworn.) 42 MR. LAUDERDALE: Can I be seated? 43 CHAIR WILLIAMSON: Yeah. Have a seat. Make yourself comfortable. 44 Typically in something like this if you ask for a petition, if you 45 could take no more than five minutes. 46 MR. LAUDERDALE: It's really just a clarification. 47 CHAIR WILLIAMSON: Sure. 48 MR. LAUDERDALE: My name is Steve Lauderdale. I'm the gentleman 49 that filed -- 50 CHAIR WILLIAMSON: You might want to move your mic. 51 MR. LAUDERDALE: Sorry. My name is Steve Lauderdale. I'm the 52 gentleman that filed the appeal in late July. 53 I understood that you may be deciding tonight whether you're going 54 to hear that. I didn't know if that's going to be in Other Business that I MINUTES OF THE SEPTEMBER 11, 2014 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED OCTOBER 16, 2014  55 didn't see it on the agenda. 56 So I really have first a question about is that going to be a topic 57 tonight? Okay. 58 CHAIR WILLIAMSON: I think with you stepping forward and bringing it 59 up, if you'd like to speak to it, we'll be able to respond to it tonight, 60 if you'd like to do that. 61 MR. LAUDERDALE: Well, yes, I would. 62 CHAIR WILLIAMSON: Please, go ahead. 63 MR. LAUDERDALE: So, I know, there's -- I hope you've received the 64 documentation I sent in. The most recent was just a three page letter 65 presenting my case why the BZA should hear this appeal based on the points 66 I made and the statements that that have come in. 67 I know that the City attorney, not representing you but representing 68 the zoning also had a document and I think I addressed these issues in the 69 Supreme Court case James and how that ruling in that case does not apply 70 here and I'm just asking you to hear that case. 71 That's really all I have unless you have questions. 72 Well, then I would like to know what your process will be to make 73 that decision. 74 CHAIR WILLIAMSON: Well, I think we're in receipt of your letter and 75 then we're also in receipt of information from the City Attorney. So they 76 made a determination and we're able to hear that this evening. 77 MR. LAUDERDALE: Okay. 78 CHAIR WILLIAMSON: So I think we would deliberate amongst the Board 79 and then make a decision here this evening. 80 Before we do that, deliberate amongst the Board, is there any 81 further information you'd like to share or -- 82 MR. LAUDERDALE: Well, okay. Thank you. I'll mention one other 83 thing which I didn't mention in writing but which was referenced by the 84 attorney, which kind of, he just threw out at the end of his document about 85 whether I'm an aggrieved party. 86 And what I wanted to share is my understanding the way that 87 aggrieved party term is interpreted in zoning in Virginia and actually 88 throughout the country, is an owner can be an aggrieved party, a tenant is 89 an aggrieved party, and neighbors could be aggrieved party. 90 The question of aggrieved party usually comes about when someone is 91 three blocks away or two miles away. But I want to make the point that I 92 am a neighbor. My property abuts this property and I've been receiving the 93 notices from the City under the requirements. We're getting these 94 applications. 95 So that hasn't been addressed much by the City attorney but he kind 96 of left that hanging. So I appreciate you asking me if there's anything 97 else, I wanted to explain my status as an aggrieved party. And basically 98 if Zoning approves this in a way that I feel is not in compliance with the 99 Code, I think it affects property values and I think my property rights. 100 CHAIR WILLIAMSON: Thank you. 101 MR. LAUDERDALE: But I didn't really want to get into any substance, 102 just focusing on my request that you hear my appeal as part of -- for the 103 legal reasons I mentioned, but also kind of transparency and good 104 government. 105 CHAIR WILLIAMSON: Sure. Like I said, we are in receipt of the 106 materials and we'll take a look at those and our job here is to make a 107 decision as to whether or not we should hear the appeal. We'll do that 108 now. MINUTES OF THE SEPTEMBER 11, 2014 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED OCTOBER 16, 2014 109 MR. LAUDERDALE: I appreciate that. Thank you. 110 CHAIR WILLIAMSON: I better ask my fellow board members if they have 111 any views they'd like to share. 112 MR. KRASNER: Well, first of all I think the framework seems that 113 it's been set correctly tonight. This is not here to discuss the merits of 114 the case or of any possible appeal. We're really here to focus on a narrow 115 issue of whether or not we can even hear the appeal in this matter. 116 So, yes, it sounds like everyone's properly framed that and we're on 117 the same page. 118 I think from what I read, I mean, I would say, I'll admit I followed 119 this application in the Planning Commission just casually. I heard that -- 120 we're not here to discuss the merits of that case and I'm aware of where 121 this property is and so forth. It's on the border. This resident, this is 122 -- the potential appellant, he's an Arlington County resident right across 123 the line adjacent to this property. And I know that it is an unusual 124 property and we already discussed that. 125 This was an application for subdivision and under Virginia Code and 126 the City Code, only the Planning Commission can approve a subdivision. So 127 it's properly filed to subdivide. And it really doesn't matter whether or 128 not it was a good subdivision, whether or not it was a legal subdivision. 129 My opinion seemed to rest with the Planning Commission as the folks 130 who should deliberate on that. I see our appealing Zoning Administrator's 131 determinations as instances where Mr. Boyle makes a call on some matter 132 that prevents somebody from doing something by right that they might want 133 to do as far as an addition or as far as building a new home or anything in 134 the Zoning Ordinance, and prevents them from getting a building permit or a 135 neighbor thinks that Mr. Boyle shouldn’t have granted the zoning approval 136 to give them a building permit. 137 In this case we're not talking about whether or not a Zoning permit 138 was issued. So that's the biggest concern I have, is that I'm not aware of 139 very many instances, if any, where we as the BZA have the ability to get 140 involved in a Planning Commission action that was before that body and 141 cited from that body because there are remedies in place to appeal and 142 address situations where people are not happy or aggrieved with the 143 decision of the Planning Commission. 144 So those are my two cents. I think that, I don't know if, 145 regardless of whether or not we agree with the appeal or not or whether we 146 agree with the Planning Commission decision if this is a good subdivision 147 or not, it doesn't really matter. 148 I tend to lean on the side of us not having, even if we wanted to be 149 involved, that really legally we're not able to be involved. But I want to 150 hear what my colleagues have to say but that's kind of how I think. 151 CHAIR WILLIAMSON: Thanks. 152 Other comments? 153 MR. HOWELL: I feel the same way. My understanding is that our 154 jurisdiction really extends to matters which are to or from the 155 administrative staff in relation to Zoning issues rather than Planning 156 Commission issues. 157 And even if the advice of the Zoning staff is sought by the Planning 158 Commission, I don't think it becomes, my understanding of the legal 159 position is that it's not within our competence to take up this issue. 160 I'm reinforced in that by the comments of the City Attorney. But in 161 the more general sense, I think that for us to start to adjudicate this 162 would produce a very difficult conflict of jurisdictions and things which MINUTES OF THE SEPTEMBER 11, 2014 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED OCTOBER 16, 2014 163 any way would be beyond our legal competence, in my understanding. 164 CHAIR WILLIAMSON: Okay. Thank you. 165 MR. STOODLEY: Yes. I want to make a motion to not hear the 166 appellant because we don't have the authority to legally hear the appeal. 167 CHAIR WILLIAMSON: Okay. 168 MR. STOODLEY: Do I have a second? 169 CHAIR WILLIAMSON: Is there a second? 170 MR. HOWELL: I second. 171 MR. KRASNER: Can we have discussion? 172 CHAIR WILLIAMSON: Yes. Before we vote, let's discuss that briefly. 173 MR. KRASNER: I just want to get on the record, again, I feel that 174 in this instance to respond directly to what the appellant wrote in his 175 letter because I did read through it, I do see that a distinction was -- he 176 tried to make a distinction that by Mr. Boyle producing memorandum and to 177 advise the Planning Commission, that is tantamount to a formal Zoning 178 determination. 179 And just to address that, I think there is a distinction between 180 that. I think that just like other experts in the City advise the Planning 181 Commission, anyone from the City forester to the City engineer to the City 182 planner and Mr. Boyle, ultimately those are City staff that serve as 183 experts in their various fields and it's up to the Planning Commission to 184 take that in, listen to the public testimony, and ultimately vote on that. 185 And at the end, if the Planning Commission made a decision and 186 people want to challenge that, the Circuit Court is the normal means to 187 challenge a Planning Commission decision. 188 So I understand the distinction that you were trying to make but I 189 really do think that Virginia Code is very strict on what the Board of 190 Zoning Appeals can hear and I think in this instance we just don't have the 191 ability to hear it. 192 I don't think that Mr. Boyle's memorandum was tantamount to a formal 193 Zoning Officer's determination, a determination that prompted the actual 194 action that aggrieved you potentially was the Planning Commission's vote. 195 And so the proper way to appeal it is to appeal the Planning Commission's 196 decision, not Mr. Boyle's decision I'm saying for us, through us through 197 the BZA. 198 CHAIR WILLIAMSON: Okay. So we have a motion, we have a second. 199 There was additional discussion, any other comments anyone would like to 200 make? 201 Okay. Before we vote on this, I'll look at my colleagues here, you 202 know, the motion is to say that we do not have the jurisdiction, so I 203 believe the answer, a response of "yes" would be to agree with the motion 204 that we do not have jurisdiction, we all agree. 205 Okay. Roll call vote please. 206 RECORDING SECRETARY: Mr. Stoodley. 207 MR. STOODLEY: Yes. 208 RECORDING SECRETARY: Mr. Krasner. 209 MR. KRASNER: Yes. 210 RECORDING SECRETARY: Mr. Howell. 211 MR. HOWELL: Yes. 212 RECORDING SECRETARY: Mr. Williamson. 213 CHAIR WILLIAMSON: Yes. 214 215 CHAIR WILLIAMSON: Thank you, sir. 216 MINUTES OF THE SEPTEMBER 11, 2014 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED OCTOBER 16, 2014 217 4. NEW BUSINESS: 218 219 CHAIR WILLIAMSON: Moving on to the next item, we have New Business. 220 And we actually have moved the one item of New Business to the October 16, 221 2014, meeting. So that will be on the Agenda for next time to ensure we 222 have sufficient advertising of that application. 223 224 5. APPROVAL OF MINUTES 225 Discussion of minutes from the June 12, 2014, BZA 226 Discussion of minutes from the July 17, 2014, BZA 227 228 CHAIR WILLIAMSON: Moving to Item 5, we have the approval of 229 minutes. We have two sets of minutes to approve. We all received these in 230 advance. We should be able to go through them pretty quickly. 231 So on the minutes, let's go though the minutes of June 12, 2014. 232 (Discussion of minutes.) 233 CHAIR WILLIAMSON: Do I have a motion to approve the minutes for 234 June 12, 2014. 235 MR. HOWELL: So moved. 236 MR. KRASNER: Second. 237 CHAIR WILLIAMSON: Roll call vote. 238 RECORDING SECRETARY: Mr. Stoodley. 239 MR. STOODLEY: Yes. 240 RECORDING SECRETARY: Mr. Williamson. 241 CHAIR WILLIAMSON: Yes. 242 RECORDING SECRETARY: Mr. Krasner. 243 MR. KRASNER: Yes. 244 RECORDING SECRETARY: Mr. Howell. 245 MR. HOWELL: Yes. 246 247 CHAIR WILLIAMSON: The minutes of July 17, 2014. 248 (Discussion of minutes.) 249 CHAIR WILLIAMSON: Is there a motion to approve the minutes of July 250 17, 2014? 251 MR. KRASNER: So moved. 252 CHAIR WILLIAMSON: Do I have a second? 253 MR. HOWELL: Second. 254 CHAIR WILLIAMSON: Roll call vote. 255 RECORDING SECRETARY: Mr. Krasner. 256 MR. KRASNER: Yes. 257 RECORDING SECRETARY: Mr. Williamson. 258 CHAIR WILLIAMSON: Yes. 259 RECORDING SECRETARY: Mr. Stoodley. 260 MR. STOODLEY: Here. I wasn't here for that. 261 RECORDING SECRETARY: I'm sorry. 262 And, Mr. Howell. 263 MR. HOWELL: Yes. 264 CHAIR WILLIAMSON: Okay. That's the approval of minutes. 265 266 267 6. OTHER BUSINESS: 268 Is there any Other Business? 269 MR. STOODLEY: I just want to say I want to thank the clerk and 270 staff for a good job. Thank you. MINUTES OF THE SEPTEMBER 11, 2014 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED OCTOBER 16, 2014 271 MR. BOYLE: Thank you. 272 CHAIR WILLIAMSON: Any Other Business? 273 Once we approve them, they'll end up being put on to the website. 274 MR. WADE: Yes. They will be. Next week we're going to update all 275 of that. 276 277 7. OLD BUSINESS: 278 CHAIR WILLIAMSON: Any Old Business? 279 MR. BOYLE: No, sir. 280 CHAIR WILLIAMSON: None. 281 282 8. ADJOURNMENT: 283 284 CHAIR WILLIAMSON: All right. Motion to adjourn? 285 MR. KRASNER: So moved. 286 CHAIR WILLIAMSON: All right. Roll call vote. 287 RECORDING SECRETARY: Mr. Stoodley. 288 MR. STOODLEY: Yes. 289 RECORDING SECRETARY: Mr. Williamson. 290 CHAIR WILLIAMSON: Yes. 291 RECORDING SECRETARY: Mr. Krasner. 292 MR. KRASNER: Yes. 293 RECORDING SECRETARY: And, Mr. Howell. 294 MR. HOWELL: Yes. 295 RECORDING SECRETARY: Thank you. 296 CHAIR WILLIAMSON: We're adjourned. Have a good night all. 297 298 MINUTES OF THE SEPTEMBER 11, 2014 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED OCTOBER 16, 2014