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 January 14, 2016 6 7:30 p.m. 7 8 1. CALL TO ORDER 9 10 CHAIR WILLIAMSON: I would like to call to order the 11 January 14, 2016, meeting of the Board of Zoning Appeals. 12 I'd like to ask for a 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: Mr. Jones. 25 MR. JONES: Here. 26 CHAIR WILLIAMSON: Thank you. 27 28 3. PETITIONS 29 30 CHAIR WILLIAMSON: Next item of Business is Petitions. 31 Are there any Petitions here before us this evening? 32 Seeing none, we'll move into New Business. 33 34 4. NEW BUSINESS: 35 a. Election of officers 36 37 CHAIR WILLIAMSON: The first order of New Business is 38 the election of officers. We have three positions to elect. We 39 have the chairman, the vice chairman, and the secretary. So I think 40 we'll go in that order as well. 41 So if any of my Board members have a nomination for 42 the chair position. 43 MR. KRASNER: I would move that we nominate Darcy 44 Williamson as our Chair, continue as Chairman for the year 2016. 45 MR. HOWELL: I will second that. 46 CHAIR WILLIAMSON: Is there any discussion among the 47 Board or shall we move to a vote? 48 (No response.) 49 CHAIR WILLIAMSON: And let the record show that Mr. 50 Calabrese entered just a moment ago. 51 So I'd like to have a roll call vote on the nomination for 52 Darcy Williamson as Chairman of the Board of Zoning Appeals. 53 RECORDING SECRETARY: Mr. Williamson. 54 CHAIR WILLIAMSON: Yes. 55 RECORDING SECRETARY: Mr. Krasner. 56 MR. KRASNER: Yes. 57 RECORDING SECRETARY: Mr. Calabrese. 58 MR. CALABRESE: Yes. 59 RECORDING SECRETARY: Mr. Howell. 60 MR. HOWELL: Yes. 61 RECORDING SECRETARY: Mr. Jones. 62 MR. JONES: Yes. 63 CHAIR WILLIAMSON: Okay. Thank you. 64 The next position is the Vice Chairman of the Board of 65 Zoning Appeals and I'd like to open that up for any nominations. 66 And I would like to offer a nomination of Brent Krasner as 67 Vice Chairman of the Board of Zoning Appeals. 68 MR. HOWELL: I'll second that. 69 CHAIR WILLIAMSON: Any discussion among the Board? 70 (No response.) 71 CHAIR WILLIAMSON: Roll call vote please. 72 RECORDING SECRETARY: Mr. Jones. 73 MR. JONES: Yes. 74 RECORDING SECRETARY: Mr. Howell. 75 MR. HOWELL: Yes. 76 RECORDING SECRETARY: Mr. Calabrese. 77 MR. CALABRESE: Yes. 78 RECORDING SECRETARY: Mr. Krasner. 79 MR. KRASNER: Yes. 80 RECORDING SECRETARY: Mr. Williamson. 81 CHAIR WILLIAMSON: Yes. 82 83 CHAIR WILLIAMSON: Okay. Thank you. 84 And the third position is the secretary of the Board of 85 Zoning Appeals. 86 Does anyone have a nomination for that? 87 MR. HOWELL: I'd like to nominate Ms. Rouzi. 88 CHAIR WILLIAMSON: Okay. Is there a second? 89 MR. CALABRESE: Second it. 90 CHAIR WILLIAMSON: Okay. Is there any discussion among 91 the Board? 92 MR. BOYLE: We have to require her to bring in pictures of  93 her new twins. 94 MS. ROUZI: I will do that. 95 CHAIR WILLIAMSON: Okay. Ms. Rouzi, please make it so. 96 As well as a roll call vote on that. 97 RECORDING SECRETARY: Mr. Williamson. 98 CHAIR WILLIAMSON: Yes. 99 RECORDING SECRETARY: Mr. Krasner. 100 MR. KRASNER: Yes. 101 RECORDING SECRETARY: Mr. Calabrese. 102 MR. CALABRESE: Yes. 103 RECORDING SECRETARY: Mr. Howell. 104 MR. HOWELL: Yes. 105 RECORDING SECRETARY: Mr. Jones. 106 MR. JONES: Yes. 107 CHAIR WILLIAMSON: Okay. That completes the election of 108 officers for 2016. 109 110 b. Review and adoption of Rules of Procedure 111 112 CHAIR WILLIAMSON: The next order of New Business is the 113 review and adoption of Rules and Procedures. We all are familiar 114 with these and have received them in advance and are in possession of 115 them. 116 Does anybody have any discussion or proposed amendments to 117 the current Board of Zoning Appeals Rules of Procedure? 118 MR. KRASNER: I don't have any revisions to make tonight. 119 I think by and large the Rules of Procedure are adequate. 120 Again, I would just put out there that given some of the 121 changes to the State Code related to Variance law that came into 122 effect July of last year, you know, there were certain rules related 123 to ex parte communications and the amount of time applicants are 124 allotted to present their case that it might be a smart idea to 125 incorporate those into these Rules at some point. 126 I'm sure the City Attorney's aware of some of these changes 127 and there are probably parts of City Code that need to be updated to 128 reflect the new State Code. And whether it's going to be State Code 129 or whether it's going to be in the City Code or in these Rules, it 130 probably will be a good idea to memorialize those. I mean the State 131 Code governs regardless whether we put it in or not. I think just to 132 make sure everyone is on the same page it probably would be wise to 133 do that. 134 It's not something that has to happen immediately but 135 perhaps Ms. Rouzi in her spare time or Mr. Boyle could work with the 136 City Attorney. I would be happy to do some drafts too but I think 137 essentially lifting the State Code language and putting it into the 138 Rules might suffice. 139 MR. BOYLE: So on ex parte communications. 140 MR. KRASNER: Ex parte communications, correct. There are 141 Rules, we discussed this in the summer, and there are Rules about 142 essentially limiting ex parte communications on Variance cases with 143 City staff. So things like that. And there are Rules about making 144 sure the applicant has the same amount of time to present their case 145 as City staff. 146 Things like that, I think it might be a good idea to put 147 them into the Rules so everyone is aware of them and informed when 148 they come to make an application here. 149 CHAIR WILLIAMSON: I think it's a good idea. 150 Ms. Rouzi, could you make sure this is on our Agenda for 151 next month, where you can provide an update on progress toward 152 getting those consolidated and able for us to review them and 153 incorporate them into the Rules of Procedure. 154 MS. ROUZI: Yes. 155 CHAIR WILLIAMSON: Okay. Any other discussion on the Rules 156 of Procedure? 157 (No response.) 158 CHAIR WILLIAMSON: Would anyone like to make a motion to 159 adopt these Rules of Procedure for 2016? 160 MR. KRASNER: Sure. I'll move that we adopt the Rules of 161 Procedure as presented tonight for 2016. 162 CHAIR WILLIAMSON: Okay. Is there a second? 163 MR. HOWELL: I second. 164 CHAIR WILLIAMSON: Okay. Roll call vote. 165 RECORDING SECRETARY: Mr. Williamson. 166 CHAIR WILLIAMSON: Yes. 167 RECORDING SECRETARY: Mr. Krasner. 168 MR. KRASNER: Yes. 169 RECORDING SECRETARY: Mr. Calabrese. 170 MR. CALABRESE: Yes. 171 RECORDING SECRETARY: Mr. Howell. 172 MR. HOWELL: Yes. 173 RECORDING SECRETARY: Mr. Jones. 174 MR. JONES: Yes. 175 CHAIR WILLIAMSON: Okay. Thank you very much. They are 176 approved. 177 178 C. Approval of 2016 meeting calendar 179 180 CHAIR WILLIAMSON: The third piece of New Business is the 181 approval of the 2016 meeting calendar. We all have it in front of 182 here. I'd just like to ask each of you to take a look at it and see 183 if you have any questions or comments. Eleven meetings throughout 184 the year, there's no scheduled August meeting at this time and just 185 follows the typical schedule that we've had for any number of years 186 now. 187 MR. BOYLE: I'll say that from time to time we do conflict 188 with some of the religious holidays. This year it did not seem to 189 impact anything, so none of these dates fall out of the usual pattern 190 of the second Thursday after the first Monday. Probably next year 191 we'll have to adjust something but all of these were clear. 192 CHAIR WILLIAMSON: Okay. Thank you. 193 Is there a motion to approve these? 194 MR. HOWELL: I move that we approve the meeting dates for 195 2016. 196 MR. KRASNER: Second. 197 CHAIR WILLIAMSON: Roll call vote. 198 RECORDING SECRETARY: Mr. Williamson. 199 CHAIR WILLIAMSON: Yes. 200 RECORDING SECRETARY: Mr. Krasner. 201 MR. KRASNER: Yes. 202 RECORDING SECRETARY: Mr. Calabrese. 203 MR. CALABRESE: Yes. 204 RECORDING SECRETARY: Mr. Howell. 205 MR. HOWELL: Yes. 206 RECORDING SECRETARY: Mr. Jones. 207 MR. JONES: Yes. 208 CHAIR WILLIAMSON: Thank you. 209 These will then be posted on the City's website? 210 MR. BOYLE: Yes. 211 212 d. Approval of the December 17, 2015, meeting minutes 213 214 CHAIR WILLIAMSON: The next order of business is the 215 approval of the December 17, 2015, meeting. 216 MR. BOYLE: An individual known to staff neglected to send 217 Ann the recording until late last week so when those are ready we 218 will get them to the Board. 219 CHAIR WILLIAMSON: So we will have those on the meeting 220 agenda for February 11th. We'll review those as part of that 221 meeting. 222 MR. BOYLE: Yes. 223 CHAIR WILLIAMSON: Do we need to move to continue this 224 Agenda item to next month? 225 MR. BOYLE: I don't think so. In fact, if the Board 226 wishes, I'll send the electronic copies and they can be an Agenda 227 item or you can discuss it, an ex parte communication. I don't think 228 we need a motion. 229 CHAIR WILLIAMSON: Yes, let's just handle it next month. I 230 think that's fine. 231 e. Discussion of policy for electronic, remote meeting 232 participation for members of the BZA 233 234 CHAIR WILLIAMSON: And then the next item of New Business, 235 and for those in attendance, you can see it's a lot of administrative 236 work this evening, we have before us a policy that was primarily from 237 State Code and it's the approved altered version from the City 238 Attorney, on the policy for electronic remote meeting participation 239 for members of the Board of Zoning Appeals. 240 In the past you've had to be present for a meeting and this 241 policy from State Code, again amended by the City Attorney for our 242 use, is before us now. 243 So I'd like everybody to take a look at that and see if 244 there's any discussion among the Board. 245 MR. KRASNER: I'm familiar with this provision from some 246 other work I do professionally. It's a good policy in general. The 247 key for folks to keep in mind is that it still requires a physical 248 quorum to be assembled. And I work with some Boards and Commissions 249 in my day job, there was an idea that perhaps the Board didn't have 250 to have a quorum assembled, but no, you still need to physically have 251 the quorum. It's to allow above and beyond that quorum, folks have 252 a conflict or an issue, there's a way that they can participate 253 through the telephone. 254 Nowadays, we can just go to technology. I don't know if 255 we're so advanced, we can have them Skype in. So generally it does 256 provide flexibility but State Code does require that the Board adopt, 257 any Board that is going to utilize that provision, that they must 258 adopt this policy to make it clear what the rules are for electronic 259 participation. 260 So in general, first I think it's a good thing but it 261 doesn't give us a free pass to all participate from the couch at 262 home. Some of us still have to show up. 263 MR. CALABRESE: A question: It doesn't appear, I haven't 264 read it in a while, to require that the remote participant have 265 access to the meeting materials, does it? Verbal or oral 266 participation without being able to access the materials that the 267 plaintiff or petitioner would submit, might not render as accurate of 268 a decision I would think. 269 MR. BOYLE: That's a good point. I don't think it does. 270 The member who's attending remotely would have anything the Board 271 received in advance of the meeting, but if the applicant were to 272 arrive with additional information, we might as staff, we might in 273 communicating with the applicant leading up to the meeting, make sure 274 that they know that we need everything electronically and then we may 275 be able to actually send it at the time of the meeting. 276 MR. CALABRESE: Yeah, and is there a requirement that the 277 -- I guess I'm reading this now, one of us simply state within 15 278 minutes of the meeting or five minutes that we're not attending or 279 does it require a notice of any period of time? 280 CHAIR WILLIAMSON: It simply says on or before the day of 281 the meeting. Which, I think it actually points out that, if it's one 282 of you, you would notify me, due to an emergency or specific matter 283 and identify that with specificity. That can happen. 284 MR. KRASNER: I believe ultimately the Chair has some 285 discretion on whether or not to allow it. 286 CHAIR WILLIAMSON: And the other thing I'll point out which 287 I think it's worth all of us just keeping in mind is that no member 288 can participate by electronic means more than two times in a calender 289 year so it's not meant to be a substitute for a meeting. 290 MR. KRASNER: Right. I see it more as being an insurance 291 policy on perhaps a day where we had something, someone had been 292 looking to participate in and something comes up or a case where we 293 were expecting a lot of discussion and the member wanted to 294 participate. I don't think it's something that we'll use often but I 295 don't see too much danger in having it as an option. In the event, 296 probably the unusual event that it comes up. 297 MR. CALABRESE: Well, if we wished to place additional 298 conditions, we could I suppose on this. This is being presented to 299 us as a proposal, is that correct? 300 MR. BOYLE: Yes. It's an option available to the Board. 301 The Planning Commission was very interested in this. They had a 302 situation where one of their very well-attended meetings where there 303 was a lot of discussion back and forth and one of the members was 304 unable to participate and it was raised either at the meeting or 305 thereafter that there was this option. 306 So the City Attorney researched it, packaged the language 307 for each Board to consider. It's not a requirement. It's an option 308 for this Board to adopt. The text comes from the State, the format 309 of what's in front of you was approved by the City Attorney and then 310 that's followed up with the motion that the City Attorney prepared to 311 make it part of your Rules or part of your Procedures anyway. 312 I'd suggest if you want to adopt this, just to give it a 313 place to reside, to put it in the Rules of Procedure or reference it 314 in the Rules of Procedure and take it from there. 315 I think historically the times we've had Board members not 316 be able to attend, it's because something happened, a car problem, a 317 family emergency just prior to a meeting. And in that case, they'll 318 be handling whatever the family crisis is and not be able to attend 319 electronically. 320 But it's an option for the Board in case you know you're 321 going to be elsewhere, we'll have to develop some ways of making it 322 as practical as possible. Mr. Calabrese pointed out, what if 323 additional materials arrive. 324 We'll have to discuss. Depending on the nature of the 325 case, there's been language in the past about if there's contention 326 between applicants, of the Board having the option not to accept 327 materials if the other side hasn't received it. The Board probably 328 has that option too, unless it's something that you think is going to 329 be helpful. 330 In that case, staff will just be diligent in making sure we 331 have electronic copies and we can probably send them to you live, 332 right from the meeting then. 333 But in general, this is an option for the Board and I don't 334 think we would have had too many opportunities to use this if it were 335 in place in the past, but the Planning Commission at least is 336 adopting it as part of theirs. I don't know if there's any other 337 Boards or Commissions that are going to do it. 338 MR. KRASNER: Well, certainly I can see a benefit. If 339 there's unusual circumstances, perhaps on a day where we have to have 340 everyone present, where we had an even number and was concerned about 341 it. I think the Planning Commission meeting you're referencing had a 342 split vote and they were even three to three on a case and if they 343 had their seventh member they would not have been deadlocked. 344 MR. CALABRESE: My only concern would be, as you mentioned 345 the example, a car breaking down. So let's say they were on the road 346 and they may or may not have access to the papers. They certainly 347 wouldn't have access to the materials presented at that moment and 348 then maybe or maybe not the materials previously provided. So then 349 we're asking them, yes, they would be present but I would think for 350 the petitioner, they're not getting the full benefit of the Board 351 member's attention, if they're not fully informed. 352 So that would be my only concern. You know, I think these 353 Rules are fine. I think formally the Chair would want to just make 354 sure that if they were to participate, they feel that they can, 355 because they have the requisite knowledge or the materials. 356 MR. KRASNER: The only reason I see it happening is if 357 somebody knows in advance they're going to be traveling on business, 358 out of town, for folks that travel. 359 MR. CALABRESE: Yes, that would be helpful. 360 MR. BOYLE: Right, your flight's canceled. 361 MR. HOWELL: I just have a practical question. We have the 362 technology presumably. Are we going to have a thing on the table for 363 an audio presence for somebody's that's not here? It can be set up 364 in the hour or two, it might be all we have in terms of notice. 365 MR. BOYLE: Yeah, the equipment I'm thinking of is not 366 complicated to set up. So we could on short notice get it up and 367 running. 368 One thing comes to mind. The applicants, when a member's 369 missing, the applicants have the option to continue. Perhaps we 370 offer that to them and say we have a member willing to attend 371 remotely and that member says they have none of the materials 372 available but they're confident, kind of how you address it if you're 373 going to recuse yourself. I'm going to identify the potential 374 conflict but I'm able to perform the duties and take the vote. State 375 that to the applicant that I'm in an airport, I do not have my 376 materials but I'm familiar with the case, comfortable to proceed, and 377 give them the option to go forward or not. 378 CHAIR WILLIAMSON: And the other item I see here is the 379 Board of Zoning Appeals would vote to approve such participation. 380 That's 1 B. 381 MR. CALABRESE: That's a good point. 382 CHAIR WILLIAMSON: So if we were looking at a voluminous 383 stack of recently provided materials and someone did not have that, 384 we could use our judgment to make the determination that it didn't 385 fit; conversely we could use our judgment to determine that we would 386 be able to proceed. 387 So I think that actually provides additional, I was going 388 to say flexibility but it allows us to evaluate a particular 389 situation. 390 MR. CALABRESE: Yes, I agree. 391 CHAIR WILLIAMSON: And I think having this as an option, 392 this is what it does. It presents it as an option, if we need it. I 393 think we're all committed to be here in person. It's just an option 394 that comes up. 395 MR. BOYLE: So essentially if something is received that 396 you all felt was a significant change and the member that's missing 397 would benefit by seeing it, then you could advise them this is 398 something that I think is important that you have time to study. 399 MR. HOWELL: But the option would be available in that 400 situation if we adopt it. 401 MR. BOYLE: Yeah. 402 CHAIR WILLIAMSON: Well, that was a good discussion. I 403 know we have before us some language that could form the basis for a 404 motion if we chose to move forward with this, I think we all received 405 those in the records. So I'll just ask if anyone would like to make 406 a motion on the policy for remote meeting participation. 407 MR. CALABRESE: I'll make a motion to approve the remote -- 408 the policy in participation of meetings through electronic means. 409 MR. HOWELL: I'll second. 410 MR. KRASNER: I'll propose a friendly amendment. I would 411 just say, amend the motion to say that we are moving to amend this 412 policy to our Rules of Procedure. And the best way to memorialize 413 these is to have them either as an attachment or actually the 414 document itself. 415 MR. BOYLE: If the Board agrees, staff can insert it as 416 Roman Numeral 7 in the Rules of Procedure. 417 CHAIR WILLIAMSON: Yeah. 418 MR. BOYLE: And we'll bring that to the next meeting. 419 420 CHAIR WILLIAMSON: Mr. Calabrese, would you accept that? 421 MR. CALABRESE: Yes. 422 CHAIR WILLIAMSON: And the second? 423 MR. HOWELL: Yes. 424 CHAIR WILLIAMSON: Is there a roll call vote please. 425 RECORDING SECRETARY: Mr. Williamson. 426 CHAIR WILLIAMSON: Yes. 427 RECORDING SECRETARY: Mr. Krasner. 428 MR. KRASNER: Yes. 429 RECORDING SECRETARY: Mr. Calabrese. 430 MR. CALABRESE: Yes. 431 RECORDING SECRETARY: Mr. Howell. 432 MR. HOWELL: Yes. 433 RECORDING SECRETARY: Mr. Jones. 434 MR. JONES: Yes. 435 CHAIR WILLIAMSON: Okay. The motion carries. 436 That completes the items of New Business that we have. 437 438 6. OTHER BUSINESS: 439 CHAIR WILLIAMSON: Is there any Other Business? 440 MR. BOYLE: Maybe ask the Board to have our guests 441 introduce themselves. I believe we have citizens interested in the 442 alternate position for this Board. If they could rise. 443 CHAIR WILLIAMSON: This is the audience participation 444 portion of the evening. 445 That's a wonderful idea. Who's here and who's interested 446 in becoming an alternate? 447 MR. GATCH: My name is Thomas Gatch. I'm interested in 448 becoming an alternate. I worked with legislative government affairs, 449 with the Tennessee Society of Professional Engineers, obviously not 450 Virginia. Interested in rules, policy, procedures, things like that 451 so I thought this would be a good place to start out. 452 CHAIR WILLIAMSON: Wonderful. Nice to meet you. 453 MR. SPROUSE: Patrick Sprouse. I've been in real estate 454 development and real estate corporation for a number of years. Went 455 down to Texas for a few years, moved back to Falls Church two years 456 ago. So it's nice to be home and just find hopefully some ways to 457 participate in the local community. 458 CHAIR WILLIAMSON: Wonderful. Welcome back. 459 Any other alternates? 460 MR. THEOLOGIS: Theodore Theologis. I've been an owner in 461 the City for about ten years, although most of it I've been an 462 absentee owner, the landlord. I'm an attorney and a real estate 463 broker but I moved back to the City and was interested in 464 participating. 465 CHAIR WILLIAMSON: Well, that's great. 466 Okay. Well, thanks for attending tonight. You'll have 467 either Mr. Krasner or myself will probably have a chance to meet all 468 of you a little more. I look forward to that, to have one other 469 member of the Board to move the process forward. That's very good. 470 Like I said, we usually have actual matters before us 471 beyond administrative activities. 472 Any Other Business? 473 (No response.) 474 475 7. OLD BUSINESS 476 477 CHAIR WILLIAMSON: Okay. Any Old Business? I don't think 478 so. 479 (No response.) 480 8. ADJOURNMENT 481 482 CHAIR WILLIAMSON: Is there a motion to adjourn? 483 MR. KRASNER: So moved. 484 CHAIR WILLIAMSON: Is there a second? 485 MR. CALABRESE: Second. 486 CHAIR WILLIAMSON: Roll call vote. 487 RECORDING SECRETARY: Mr. Williamson. 488 CHAIR WILLIAMSON: Yes. 489 RECORDING SECRETARY: Mr. Krasner. 490 MR. KRASNER: Yes. 491 RECORDING SECRETARY: Mr. Calabrese. 492 MR. CALABRESE: Yes. 493 RECORDING SECRETARY: Mr. Howell. 494 MR. HOWELL: Yes. 495 RECORDING SECRETARY: Mr. Jones. 496 MR. JONES: Yes. 497 CHAIR WILLIAMSON: We are adjourned. Have a good evening, 498 everybody.