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 March 12, 2015 6 7:30 p.m. 7 8 1. CALL TO ORDER 9 10 CHAIR WILLIAMSON: I would like to call to order the March 12, 2015, 11 meeting of the Board of Zoning Appeals of the City of Falls Church. 12 Roll call please. 13 14 2. ROLL CALL 15 16 RECORDING SECRETARY: Mr. Williamson. 17 CHAIR WILLIAMSON: Here. 18 RECORDING SECRETARY: Mr. Krasner. 19 MR. KRASNER: Here. 20 RECORDING SECRETARY: Mr. Calabrese. 21 (No response.) 22 RECORDING SECRETARY: Mr. Howell. 23 MR. HOWELL: Here. 24 RECORDING SECRETARY: Thank you. 25 26 27 3. PETITIONS 28 29 CHAIR WILLIAMSON: Are there any petitions from the audience? 30 (No response.) 31 32 4.NEW BUSINESS: 33 34 CHAIR WILLIAMSON: Okay. Seeing none, we can move onto New 35 Business. 36 37 a. 38 Variance application V1568-15 by Jeff Henrikson to allow a side yard 39 setback of three feet instead of ten feet on the northwest side of the 40 house, to permit the enclosure of an existing screened-in porch on 41 premises known as 916 Park Avenue, RPC #51-203-008 of the Falls Church Real 42 Property Records, zoned R-1B, medium-density residential, said property 43 owned by Jeffrey and Susan Henrikson. 44 45 CHAIR WILLIAMSON: We have a variance application V1568-15 by Jeff 46 Henrikson to allow a side yard setback of three feet instead of ten feet on 47 the northwest side of the house, to permit the enclosure of an existing 48 screened-in porch on premises known as 916 Park Avenue, RPC #51-203-008 of 49 the Falls Church Real Property Records, zoned R-1B, medium-density 50 residential, said property owned by Jeffrey and Susan Henrikson. 51 And if I could just ask anyone here who is going to speak on this 52 matter tonight, to please stand and raise their right hand and be sworn in. 53 (Witness sworn.) 54 CHAIR WILLIAMSON: Okay. Before we turn it over to the applicant, MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015  55 we'd like to get a quick report from staff. 56 MR. BOYLE: Thank you, Mr. Chair. And I think it's appropriate to 57 point out our rules for the Board for approval with three members present 58 and give the applicant a choice. 59 CHAIR WILLIAMSON: Yes, thank you. We have a -– you can see we do 60 not have a full Board here tonight. For your variance application to be 61 approved, you would need to have all three of us in agreement. You have 62 the option of continuing forward or continuing it until next month. 63 MR. HENRIKSON: I think I'm fine to proceed. 64 CHAIR WILLIAMSON: Okay. Thank you. 65 MR. BOYLE: Mr. Chairman, this involves the enclosure of an existing 66 screened porch. It's been there for a number of years, long enough to show 67 up on the plats and surveys. The property owners are hoping to enclose it 68 into living space and it exists in the setback and so enclosing this porch 69 into living space is an alteration staff does not have authority to 70 approve. Construction like this in the setback requires a variance. 71 And the Board may recall there was a similar one virtually identical 72 to this up the street, enclosing a similar size porch. And in reviewing 73 these, we take some time to make sure it's not being expanded or extended 74 closer to the line but merely being enclosed but beyond that step, no 75 authority to approve this. 76 So we recommended the filing of a variance application and making 77 the case before the Board for a variance to enclose that. 78 So with that, I would defer to the applicant's presentation. 79 CHAIR WILLIAMSON: Okay. Thank you. 80 Please state your name and address and you may proceed. 81 MR. HENRIKSON: My name is Jeff Henrikson. I live at 916 Park Avenue 82 in the City of Falls Church. Can I grab the application? 83 Well, so have a screened-in porch that is 75 years old and we would 84 like to renovate it and in an ideal world we would like to enclose the 85 porch and basically not really change it, just enclose it, not expand it, 86 not shrink it, but just keep it the same. 87 My understanding is because the porch is less than three feet away 88 from the property line, that it would be better if we bring it back to 89 three feet, which is four inches. So we propose cutting it back four inches 90 and making the wall facing the property line fire resistant up to one hour 91 which is to Code, and we would hope to enclose it with glass on the other 92 two sides. 93 So looking at the plat you can see it's 2.7 feet from the property 94 line, that's where the porch ends. So I think we're going to try to cut it 95 back by four inches. And the fire rating for the wall, the wall on the 96 side facing the property would then have to be rated to one hour and that's 97 also part of the application that you see here. We have a couple of studs 98 and then it's basically dry wall on both sides rather than just dry wall on 99 one of the sides. So that's the fire rating that we would use. 100 And then you see the two neighbors on either side have agreed that 101 they're okay with the change. And the pictures, one shows kind of a far 102 shot of our porch and the condition that it's in now, kind of an eyesore I 103 would say to the neighborhood. And there's a zoomed-in picture where you 104 can see the paint is cracking, you can see the foundation, the state of the 105 screen itself, that sort of thing. 106 And then there's a third picture of the –- that's the exact same 107 build two houses down where they applied for a variance and received a 108 variance and we would hope to have it look very similar to that except for MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015 109 the side that would be facing the property would be that fire-rated wall. 110 So that about sums it up. 111 CHAIR WILLIAMSON: Okay. Are there any questions for staff on this? 112 I just have two questions for the applicant. 113 MR. KRASNER: I have a few questions for staff, Mr. Chairman. 114 CHAIR WILLIAMSON: Yes. 115 MR. KRASNER: Just a few questions for staff, Mr. Boyle. For the 116 record, first of all, we're in the R-1B District and that normally requires 117 a 60 foot wide lot. 118 MR. BOYLE: That's correct. 119 MR. KRASNER: And this lot measures how many feet? 120 MR. BOYLE: 50 feet in width. 121 MR. KRASNER: 50 feet in width. 122 MR. HENRIKSON: That's a good point. I didn't talk about that, two 123 hardships. Did you want me to mention that or –- 124 CHAIR WILLIAMSON: We'll circle back. 125 MR. KRASNER: Other question is obviously this house -– well, actually 126 this is for the applicant. Do you know what year your home was built? 127 MR. HENRIKSON: 1940. 128 MR. KRASNER: 1940. 129 MR. HENRIKSON: 75 years. 130 MR. KRASNER: Mr. Boyle, I believe that does predate the City Zoning 131 Ordinance. 132 MR. BOYLE: Yeah, I believe there's a zoning code at that time but the 133 setbacks were not what they are today. 134 MR. KRASNER: Right. It predates our current Ordinance. Predates the 135 incorporation of the City as well. 136 MR. BOYLE: Correct. 137 MR. KRASNER: One last question. This is just a building code 138 question. The applicant mentioned the issue of the fire rating and I think 139 that's the case, when you're less than five feet, there can't be any 140 windows on that side, that's also right, I believe. 141 MR. BOYLE: Yeah, the building official has some discretion but it's 142 critical at three feet and I think his preference is that there not be 143 windows but I'm not sure if that's been -– 144 MR. HENRIKSON: He told me 25 percent was the maximum that would be 145 allowed. 146 MR. BOYLE: Okay. So that's the reason I believe for the pulling it 147 back to the three feet. It's a little less than three now, which is the 148 distance we would set a garage off the property line 149 MR. KRASNER: Right. Those are my only questions. Thank you. 150 CHAIR WILLIAMSON: Any other questions? 151 MR. HOWELL: Yes. I have a question to Mr. Boyle. I'm not quite 152 clear about the fire. I haven't heard about this one before when there are 153 some other things come up. 154 Am I right in understanding if the extra inches come off to make it 155 three feet, it then gives more leeway to have windows on that side of the 156 house, is that the rule? 157 MR. BOYLE: The building official is asking for that based on the 158 current Building Code that's in place and it's not my area of review, 159 however I've seen it with other structures. Garages are a good example. 160 The building official does not ask for a one hour fire rated wall if the 161 structure is five feet off the line, but less than that and no closer than 162 three, he requires a fire-rated wall of at least one hour to give the fire MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015 163 department an opportunity to arrive and then there's some restrictions on 164 how many openings in that wall there are. Openings I believe defeat the 165 purpose of the fire rating. So that's yet to be determined. I think 25 166 percent was mentioned. So the final structure will have to meet the 167 Building Code for that fire rating and the key distance is three feet off 168 the line. 169 MR. HOWELL: Sorry, just to clarify again. We've got a photograph in 170 front of us which is of an extension of a house two doors down and that 171 seems to have a pretty adequate windows all around. Is the suggestion that 172 somehow this extension will have less window space because of this fire 173 regulation? I didn't understand the 25 percent reference. 174 MR. BOYLE: Yeah, and I'll have to defer to the building official for 175 that. It may be the materials that were used, it may be the proximity of 176 the house on the other side of the line. I know he has some discretion but 177 I think in a literal application, there's no openings whatsoever at three 178 feet but he has some discretion. So whatever is approved at permit will be 179 meeting the building official's application, his Code. 180 If the Board chooses to approve this, it may be wise to not include 181 the fire requirements in a motion to approve and just leave that to the 182 building permit approval process, it will get built to Code, but 183 concentrate on the distance off the line and the building and the setback. 184 I know the building official would have seen that other structure and 185 I have to assume that that was built to his Code. So perhaps with the 186 amount of glazing that's in that structure, there's a difference in 187 materials or the proximity of the house on the other side of the line. 188 MR. HENRIKSON: If I can add to that. I specifically recall the day 189 that the building official realized that that was –- what was being 190 proposed did not meet Code. So I know that that was changed to meet Code. 191 And that also, that porch sits at three and a half feet off the line, so 192 that may have had some kind of an impact of what the building official 193 allowed on that one. 194 But I specifically recall being in the office when he caught it and 195 she had to come in and revise her plans. 196 MR. KRASNER: You're talking about the previous applicant, the house 197 two doors down. 198 MR. HENRIKSON: Yes, 912. 199 MR. KRASNER: So this instance, this today exists at 2.7 and the 200 recommendation of the building official was to bring it back to at least 3. 201 MR. HENRIKSON: Right. 202 MR. KRASNER: And I believe the Code has to do with right, when you 203 can have windows. It's based on fire issues and having separation of 204 structures. 205 MR. BOYLE: Right, right. 206 CHAIR WILLIAMSON: Please. 207 MR. HOWELL: Just looking at this overhead, this overhead aerial 208 image, this extension doesn't seem to abut on the house next door. The 209 house seems -– the building line in other words of the neighboring house 210 seems to be behind where this extension is going to be. 211 MR. BOYLE: Oh, I see. 212 In talking with the building official over the years and how he does 213 his Code, he does take into consideration that there could be a structure 214 there in the future and not want to encumber that. With this being an 215 active building lot, he may not want to hamstring that landowner. 216 MR. HOWELL: Thank you. MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015 217 CHAIR WILLIAMSON: I don't have any questions, they have been asked by 218 my colleagues. 219 Any closing comments you'd like to make, Mr. Henrikson? Don't have to 220 be but I just offer it to you before we close it to discussion and discuss 221 among ourselves before we put it to a vote. 222 MR. HENRIKSON: I feel that you have a pretty good understanding of 223 the situation. 224 CHAIR WILLIAMSON: Okay. We'll close it off to discussion with the 225 applicant and staff. 226 Any discussion amongst the Board or would you like to make a motion? 227 MR. KRASNER: Mr. Chairman, I guess my analysis of the application is 228 that it's a fairly regular situation, you encounter it in in Falls Church 229 quite a bit when you have an older house. It creates the Zoning Ordinance 230 that was built very close to the property line. The Zoning Ordinance has 231 changed. The applicant appears to be –- fortunately he's not enlarging 232 the structure, he's just enclosing the existing porch and he's actually 233 bringing it back several inches so in a way he's slightly improving the 234 encroachment. 235 And I think the effect of enclosing the porch will have a minimal 236 impact on the neighboring property and that lot is undersized. And for 237 those reasons I feel he meets the standards for hardship for a variance. 238 So with that, I make a motion that we approve Application V-1568-15 239 at 916 Park Avenue to allow a side yard setback of 3 feet on the northwest 240 side of the house to permit the enclosure of the existing screened-in 241 porch. So moved. 242 CHAIR WILLIAMSON: Is there a second? 243 MR. HOWELL: Second. 244 CHAIR WILLIAMSON: We have a second. 245 Roll call vote please. 246 RECORDING SECRETARY: Mr. Williamson. 247 CHAIR WILLIAMSON: Yes. 248 RECORDING SECRETARY: Mr. Krasner. 249 MR. KRASNER: Yes. 250 RECORDING SECRETARY: Mr. Howell. 251 MR. HOWELL: Yes. 252 253 CHAIR WILLIAMSON: Congratulations, Mr. Henrikson. You have your 254 variance. Good luck with your project. 255 MR. HENRIKSON: Thank you. 256 CHAIR WILLIAMSON: And have a good evening. 257 MR. HENRIKSON: Thanks for coming, guys. I appreciate it. 258 259 5. APPROVAL OF MINUTES 260 Discussion of minutes from the December 11, 2014, BZA meeting 261 262 CHAIR WILLIAMSON: Okay. Moving on to the next order of business, 263 we have Approval of Minutes from our last meeting, December 11, 2014. 264 (Minutes reviewed.) 265 CHAIR WILLIAMSON: Is there a motion to approve the minutes? 266 MR. KRASNER: Move we approve the minutes. 267 CHAIR WILLIAMSON: Second? Is there a second? 268 MR. HOWELL: Second. 269 CHAIR WILLIAMSON: Roll call vote please. 270 RECORDING SECRETAY: Mr. Howell. MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015 271 MR. HOWELL: Yes. 272 RECORDING SECRETARY: Mr. Krasner. 273 MR. KRASNER: Yes. 274 RECORDING SECRETARY: And Mr. Williamson. 275 CHAIR WILLIAMSON: Yes. 276 277 6. OTHER BUSINESS: 278 279 Moving on to Other Business, is there any Other Business? 280 MR. KRASNER: Mr. Chairman, Other Business, there is something I 281 wanted to discuss with the Board. 282 CHAIR WILLIAMSON: Please. 283 MR. KRASNER: The Board may not be aware, the staff may or may not 284 be aware, that there is legislation that has worked its way through the 285 General Assembly session this year in Richmond that will directly affect 286 the Board of Zoning Appeals. Governor McAuliffe is expected to sign it, he 287 hasn't signed it yet but all indications are, as I understand it, that he 288 is going to sign it. The law would change two key ways that we do 289 business. 290 One, it affects variances, the standards for variances, and the 291 other thing it does, it affects legalese ex parte communications between 292 members of this Board and staff. 293 On the variance front, my understanding and I've read drafts of the 294 law and I don't think it's going to change very much, is that it is 295 actually lowering the bar, lowering the standard for a variance. The 296 hardship language is going to remain but in addition to a hardship, I 297 believe the new language is anything that would I guess impede or prevent 298 adequate or proper utilization of the property, something like that, so it 299 weakens it. 300 So now, here in Falls Church, in some ways, I don't know if it's 301 going to be a major change for us but it does I think for some applicants 302 where it's been really difficult for us to make a case that they really 303 have a hardship, this now allows a little more discretion on our part, as 304 far as what the proper utilization of the property is. I'm sure we'll be 305 debating that term and that phraseology but I believe that's the way the 306 final version of the law is going to read. 307 So we should be aware, I believe it's going to go in effect in July. 308 It's a new standard we can apply, so in some cases where in the past we 309 might have been very reluctant to approve a case, we have a little more 310 discretion if we feel it's related to the proper utilization of the 311 property. 312 The other point of the law is it affects ex parte communications 313 between Board members and staff. The way the law reads now is that 314 essentially any communications between ourselves, not just as a group but 315 as individuals and staff on a particular case essentially is prohibited 316 unless the applicant is made aware of the nature of that discussion, 317 essentially immediately thereafter. 318 There are a few exceptions to that, discussions with counsel, legal 319 counsel is exempt, and general topics talking to staff about, general 320 issue, but if anything related to a specific case before us, the applicant 321 needs to be made aware of the nature of that discussion beforehand. 322 Just to make everyone aware of that change. I would also ask staff 323 to maybe consult with the City Attorney, make sure they're aware of this 324 law. And it would be helpful for us if the City Attorney could perhaps MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015 325 give us an opinion on it. I'm not a lawyer, I'm just pretending to be one, 326 but someone who actually is a lawyer who can interpret it for us I think 327 would be helpful because it's a major change. 328 My understanding is it came, like a lot of laws in Virginia, it 329 didn't come from up here, it came from other parts of the State where there 330 was a perception that people showed up at hearings and staff and the Board 331 had already sort of figured everything out beforehand and whatever the 332 staff said, the Board did. They wanted to try to even the playing field. 333 I think it also requires, there might be a part in there about whatever 334 time staff has to testify and speak at a hearing, the applicant has to be 335 given the same amount of time to present their case as well. 336 So, if we give staff ten minutes, we have to give the applicant ten 337 minutes. There are a few things like that where I think the point is 338 trying to even the playing field, where there was a perception that the 339 deck was stacked against the landowners. 340 So, it's interesting. I believe it's House Bill 1841 or 1851. If you 341 Google the General Assembly session, Google variance law or BZA law, you 342 can probably find a copy. I can circulate the draft that I have with the 343 Board. 344 CHAIR WILLIAMSON: Yeah, that's really helpful. I agree. We need to 345 get debriefed by the City Attorney. I think there's -– if it's going into 346 effect in July, one of the things that comes to mind for me after hearing 347 this is will we want to modify any of our Rules of Procedure, especially 348 with regard to time frames. We have, at least as I've performed this role, 349 we've generally just given people the time to speak and if there are time 350 frames we need to adhere to, maybe we should have that as part of the Rules 351 of Procedure. And then if we need to include anything around 352 communications, we'll want to put that in there so we can reference it if 353 we need to. 354 But it's July 1 when these new laws goes into effect –- 355 MR. KRASNER: Typically. 356 CHAIR WILLIAMSON: If you could just ask the City Attorney to brief 357 us, far enough in advance that we would be able to look at the Rules of 358 Procedure and modify those if we have to, that would be my request. But 359 I'm not asking for this in March, but we need enough time to have a chance 360 to look at the Rules and discuss them with the Board. 361 MR. BOYLE: Sure. 362 MR. KRASNER: In the same token, we should also take a look at our 363 Ordinance, in the way it's laid out, the criteria for variance, so if any 364 changes are needed to our Ordinance as a result, that's something for the 365 City Council to consider, if this law affects that, and I believe it very 366 well could. 367 MR. BOYLE: That's a good point. I've seen conversation in our 368 State Association about this law and there's a lot of back and forth. Some 369 think it respects the BZA authority, elevates it, again more like a court. 370 It's already a quasi-judicial body. But a court would not be permitted to 371 have a conversation with applicants or staff outside a public forum. 372 So you're right, probably coming from a jurisdiction that had issues 373 that they're trying to resolve. But I see it, is the burden of the 374 applicant in a variance situation, clearly did not like the Cochran 375 situation and has been stepping that back since, making it easier. But the 376 rule about communications, that's been a topic every year, what do you do 377 with emails, is that a meeting, what have you. This will probably keep it 378 in line with that. MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015 379 But I see it as elevating again the Board's perception of what a BZA 380 is and reminding everyone that it's a quasi-judicial body. Probably was 381 handled a lot less formally wherever this was occurring, and so they're 382 setting the guidelines for them. 383 So the conversation is underway and I agree, I think it's appropriate 384 for the City Attorney to brief the Board on how to proceed. It may take a 385 Code revision and probably Rules of Procedure which I think you're free to 386 revise at any time. Maybe that will be an agenda item. 387 And if we get something solid back from the City Attorney and happen 388 to not have an agenda, that probably would be worthy to call a meeting if 389 we had no agenda items. 390 CHAIR WILLIAMSON: That's a good idea. 391 MR. BOYLE: We'll watch for that. 392 CHAIR WILLIAMSON: Thanks, Mr. Krasner. 393 Is there any Other Business? 394 (No response.) 395 396 7. OLD BUSINESS 397 398 CHAIR WILLIAMSON: Okay. Is there any other Old Business? 399 400 8. ADJOURNMENT 401 402 CHAIR WILLIAMSON: Seeing none, is there a motion to adjourn? 403 MR. HOWELL: I move. 404 CHAIR WILLIAMSON: Is there a second? 405 MR. KRASNER: Second. 406 CHAIR WILLIAMSON: Voice vote. 407 (A chorus of "ayes.") 408 CHAIR WILLIAMSON: This meeting is adjourned. 409 410 MINUTES OF THE MARCH 12, 2015 MEETING OF THE BOARD OF ZONING APPEALS AS APPROVED ON JULY 16, 2015