Board of Zoning Appeals

1 SPECIAL MEETING OF THE BOARD OF ZONING APPEALS 2 City Council Chambers 3 300 Park Avenue 4 Falls Church, Virginia 22046 5 September 21, 2017 6 7:30 p.m. 7 8 1. CALL TO ORDER 9 CHAIR WILLIAMSON: I would like to call to order a 10 Special Meeting of the Board of Zoning Appeals for September 21, 11 2017. 12 Roll call. 13 14 2. ROLL CALL 15 MR. BOYLE: Mr. Williamson. 16 CHAIR WILLIAMSON: Here. 17 MR. BOYLE: Mr. Litkenhous is absent. 18 Mr. Calabrese. 19 MR. CALABRESE: Here. 20 MR. BOYLE: Mr. Jones. 21 Absent. 22 Mr. Sprouse. 23 MR. SPROUSE: Here. 24 MR. BOYLE: And Mr. Misleh. 25 MR. MISLEH: Here. 26 3. APPROVAL OF MINUTES 27 a. None 28 CHAIR WILLIAMSON: The next item on the Agenda is the 29 Approval of Minutes. There are no minutes to approve. 30 31 4. OLD BUSINESS 32 CHAIR WILLIAMSON: There is no Old Business which is 33 the next item on the Agenda. 34 35 5. PETITIONS 36 CHAIR WILLIAMSON: And are there any petitions here 37 this evening? 38 MR. BOYLE: No, sir. 39 40 6. NEW BUSINESS 41 A. Variance application V1594-17 by Scott Shreffler, 42 contractor, and Keith Bartlett, owner, for a variance to Section 43 48-238(3)(a) to allow a side yard setback of eleven (11) feet 44 instead of fifteen (15) feet on the west side of the house, and 45 a rear yard setback of thirty-five (35) feet instead of forty 46 (40) feet to construct a single-family house on premises known 47 as 1105 Jackson Court, RPC #52-405-005 of the Falls Church Real 48 Property Records, zoned R-1A, Low Density Residential. 49 50 CHAIR WILLIAMSON: Okay. Why don't we move on to Item 51 6 which is New Business, which is Variance Application V1594-17 52 by Scott Shreffler, contractor, and Keith Bartlett, owner, for a 53 variance to Section 48-238(3)(a) to allow a side yard setback of 54 eleven feet instead of fifteen feet on the west side of the 55 house, and a rear yard setback of thirty-five feet instead of 56 forty feet to construct a single-family house on premises known 57 as 1105 Jackson Court, RPC #52-405-005 of the Falls Church Real 58 Property Records, zoned R-1A, Low Density Residential. 59 Mr. Shreffler, Mr. Bartlett, and anyone who is going 60 to speak on your party's behalf, do you want to step forward to 61 the table. 62 MR. BARTLETT: Sure. 63 CHAIR WILLIAMSON: If you'd go ahead and sign in. And 64 after you both sign in, I'm going to ask you to both stand and 65 raise your right hands. 66 (Witnesses sworn.) 67 CHAIR WILLIAMSON: And before we hear from you, what 68 we typically do is we hear a report from staff. We'll hear from 69 Mr. Boyle and the report from staff before you begin. 70 MR. BOYLE: Thank you, Mr. Chair. 71 This involves a proposed house construction that's 72 still in the design phase at 1105 Jackson Court. And at some 73 point during the preparation of plans and I assume also the 74 grading plan, concepts of the grading plan, the parameters that 75 they've been given to stay off the easement and pipe that the 76 City has on the property were changed. And my understanding, 77 it's a change of City policy to keep structures away from that 78 existing pipe that bisects this property. 79 On your handouts you've got a survey that was prepared 80 by the applicant and also a survey from a civil engineer that 81 shows the location of the easement and the pipe. 82 So at the core of this question is once the applicants 83 got well into the design of the structure, the City thought it 84 would be in the best interest of the integrity of that pipe to 85 go an additional distance off. 86 So there's a couple of issues of whether it's an issue 87 for this Board to grant relief under these circumstances; 88 specifically for a policy change that impacts the design of the 89 house. 90 But coupled with that, this lot does have some unusual 91 features. It's adequate for square footage. It's not 92 substandard for square footage but it has the challenge of that 93 easement and pipe running across that pushes the right-hand side 94 setback, I think it's approximately 25 feet. I was scaling it 95 off the plans a few minutes ago. 96 So instead of the standard 15 foot, the location of 97 the pipe forces that setback to jump from 15 to more like 25, 28 98 feet down the right hand side. So that land is lost for use by 99 the property owner. 100 I think that's as far as I can go with explaining the 101 details of this. But I'm here for any input on how we arrived 102 at this but we also have a member of our engineering staff, 103 Jason Widstrom is here in case you have any questions of staff. 104 And with that, I'll defer to the applicant's 105 presentation. 106 CHAIR WILLIAMSON: Any clarifying questions of Mr. 107 Boyle before we proceed? 108 MR. CALABRESE: Yes. So you're saying they were 109 using policy guides that said there was X number of feet they 110 had to be away from the easement. 111 MR. BOYLE: Yes. 112 MR. CALABRESE: Which was 7 or 10, something like 113 that. 114 MR. BOYLE: I believe it's 5 feet from the easement. 115 MR. CALABRESE: And you changed the policy to make it 116 larger. 117 MR. BOYLE: Ten feet. 118 MR. CALABRESE: So their plans, did they adjust their 119 plans as a result of that or did not? 120 MR. BOYLE: I believe they'll make the case that it's 121 a hardship. 122 MR. CALABRESE: To make the change. 123 MR. BOYLE: To make the change at this point in the 124 planning of the structure. But I'll leave that to them. 125 MR. CALABRESE: And how was this policy change 126 announced, when the City made the change? 127 MR. BOYLE: I should ask Mr. Widstrom to speak to 128 that. 129 CHAIR WILLIAMSON: If you could step forward. There's 130 a microphone right there if you want to use that, either way. 131 We will need you to sign in. 132 I would view this as a clarifying question. We do 133 want to get to the applicants, but if you can answer a 134 clarifying question. 135 MR. WIDSTROM: Sure. Absolutely. 136 CHAIR WILLIAMSON: Thanks. If you would raise your 137 right hand. 138 (Witness sworn.) 139 CHAIR WILLIAMSON: If you could please address the 140 question that Mr. Calabrese had for Mr. Boyle. 141 MR. WIDSTROM: So, the question of how it was 142 announced. So, it's interesting, I'm going to back up a little 143 bit to the answer. 144 So, we have that, experiencing weekly requests for 145 infill-type development on lots where it's really difficult 146 utilities. Just in the very recent history, we've had a couple 147 of cases where the storm pipe was close to the proposed home and 148 we weren't exactly sure how to handle these. 149 And so initially our thought was a typical easement 150 that you have, the pipe is centered and it's a 10 foot easement, 151 so a 5 foot buffer seems reasonable. 152 With that approach, that was kind of how we were 153 handling it internally. It wasn't an official policy because 154 these were coming here and there. And it seemed to be working. 155 Then another project came in where we started looking 156 at the depth of the sewer line and it occurred to us that depth 157 has a significant impact upon how the footing might interplay if 158 we ever have to dig that pipe up for an emergency. So we 159 realized that 5 foot buffer is actually maybe a guideline but 160 really it's a case-by-case basis that you need to look at these. 161 CHAIR WILLIAMSON: So, if we can just get to how you 162 announced it and when. 163 MR. WIDSTROM: So we had to get an official 164 determination on a policy. The policy would be good engineering 165 judgment when a project comes up within proximity, we want to 166 look at that as a case-by-case. So we haven't announced that 167 but that's part of our grading plan process and that's how we're 168 going to review these. 169 So in this case, that conversation was had with our 170 staff about the 5 foot buffer. That was explained to Mr. 171 Shreffler and then another case came up, we looked at our idea 172 of the 10 foot and we said no, this isn't going to work, and 173 then the grade plan was submitted to us and then we reviewed it 174 and saw the error. 175 MR. CALABRESE: So Mr. Bartlett would not have known 176 about this policy change until he had submitted the proposal to 177 you; is that what you're saying? 178 MR. WIDSTROM: That's correct. 179 MR. CALABRESE: Okay. 180 CHAIR WILLIAMSON: When the proposed grading plan was 181 submitted. 182 MR. WIDSTROM: Yes. 183 CHAIR WILLIAMSON: Okay. And then that's an official 184 step in the normal process. 185 MR. WIDSTROM: Yes. 186 CHAIR WILLIAMSON: Okay. Thank you. We may have 187 further questions after we hear from the applicant. 188 MR. WIDSTROM: Sure. 189 CHAIR WILLIAMSON: Thank you. Please proceed. 190 MR. SHREFFLER: Thank you. So John did a very great 191 job. 192 And first of all, I want to say thank you for meeting 193 this evening. I understand this is not typical schedule. It's 194 three weeks prior to the regularly scheduled meeting so we do 195 appreciate you meeting here tonight. 196 So, not going over anything that hasn't already been 197 said here, what has been said is accurate. We were pro-active. 198 We approached the City in the planning phases of both the 199 grading plan and the house design. 200 After learning of the sanitary line that was placed outside of 201 the easement, you'll see that. That's one key factor here to 202 consider, is we knew of the easement that existed upon 203 purchasing the property; however the discovery of the 8 inch 204 sanitary that was outside I think you said, it was done after 205 purchasing the property. 206 So we knew it existed, we designed, we asked the 207 question of staff how far away from this pipe do we need to stay 208 in the design. We were given a guideline of a 5 foot number, 209 which we designed to. 210 It was approximately 30 days later that we were then 211 informed by staff that this policy decision or guideline had 212 been revised to 10 feet. So, therein lies the hardship. 213 We were 30 days along in the process and it just so 214 happened that our specific design of this home, as you can see 215 in the handout there, has a wraparound porch. It has also an 216 enclosed screened porch on that side and without relief to the 217 setback on the opposite side of the property, we would be forced 218 to significantly reduce the size of the porch and change the 219 wraparound nature of the design, which, in effect, changes the 220 entire structure of the home both externally and internally. 221 And as a result it would be not only expensive but a 222 month or two in redesign work. 223 So at that point we just thought it would be best to 224 approach you all for a variance to not only the left side or 225 west side of the property but also the rear because in shifting 226 it diagonally, we move diagonally away from the pipe; so in 227 other words, parallel with it. And thus allowing us to build a 228 home that we had previously designed without making any design 229 changes. 230 So that essentially sums up sort of the timeline and 231 the concerns and the hardship that we feel we are presented with 232 here and the uniqueness of this particular lot and also the 233 timing of how the information was disseminated and changed. 234 Obviously if we had known that in advance, we would have 235 designed it differently but we didn't have that opportunity. 236 So thank you. 237 CHAIR WILLIAMSON: Okay. Are there any questions for 238 the applicant? 239 MR. CALABRESE: So the standard that the statute and 240 ordinance provides for granting the variance is that essentially 241 you could not build, there would be such great harm for you to 242 build the house in accordance with the current setbacks that 243 essentially you render the property, the property listed with 244 the house couldn't really be built. 245 Now, when you describe your harm, you said it would be 246 best, to require redesign would be expensive. It's not usually 247 what we hear, it's usually this has to be done, otherwise we 248 can't build the house or we really can't do it. It's not 249 usually we have to redesign, it's going to cost more money, this 250 is probably the best way to do it. 251 So I'm going to ask you if you could present this 252 truthfully in those terms. 253 MR. SHREFFLER: Yes, truthfully, certainly. We could 254 step back and we could resign the home. There is the home that 255 can be designed here. 256 One challenge I did not mention however and John 257 alluded to this to some extent, we do have an usually shallow 258 lot to work in which is why we've extended the width of the 259 home. 260 So in our initial design we have a shallow home 261 compared to a lot of other homes in the same zoning district. 262 And so we've, in consultation with the owners here, we've 263 designed it so they can maximize the available width. And then 264 upon discovering this addition information, we then are now in a 265 position of, well, not only are we building a relatively shallow 266 home in relation to other homes, we are also now being squeezed 267 left to right. 268 So, and to be quite honest, I understand what you're 269 saying about the hardship, in that, yes, a house could be built 270 here. But the key factor is that the 8 inch sanitary pipe is 271 outside of the existing easement that was granted when the 272 initial development occurred, therefore it really doesn't belong 273 there. 274 Now for engineering purposes, perhaps it was placed 275 there but there is no existing easement today for the pipe to be 276 there. So, that was a discovery again, after the fact. 277 So that, we feel is an encumbrance. It's a hardship. 278 It's really something that should not be there in the first 279 place. 280 And the second thing I'll point out again is just the 281 timing. It's sort of a fairness situation here. It's not 282 necessarily so much a hardship and that is that we were given 283 guidance from the City who has jurisdiction to tell us these 284 guidelines which were then changed as a policy 30 days after 285 being provided the information. 286 I actually have brought along the transcript of the 287 email exchange and how that discussion transpired. But those 288 are the facts. There was over 30 days. 289 So, does that answer your questions? 290 CHAIR WILLIAMSON: You said, if I heard you correctly, 291 when the property was purchased -- 292 MR. SHREFFLER: Yes. 293 CHAIR WILLIAMSON: This 8 inch sanitary sewer was not 294 identified. Why is that when an owner is going to make a 295 purchase? Was it known to be there? 296 MR. SHREFFLER: Well, the City has mapping tools. We 297 knew that there was an 8 inch sanitary pipe in the ground 298 somewhere in that general vicinity. And we knew that there was 299 a 20 foot easement for public utilities. It wasn't discovered, 300 the precise location, until we did actual surveying work. 301 CHAIR WILLIAMSON: I see. 302 MR. BARTLETT: If I might just add to that. 303 CHAIR WILLIAMSON: Please. 304 MR. BARTLETT: When we did our title search and our 305 deed information search during, before closing, we did determine 306 that there was a storm sewer pipe along the east border which is 307 under and included in the existing easement. So that's part of 308 our title search, we found that out. 309 But we didn't know that there was this sanitary sewer 310 that was, well, we have a 2000 square foot easement to the City 311 on the east side and now we have, what's in essence, a 312 restriction of another 2000 square feet of property because of 313 this improperly placed sanitary sewer. 314 So even before I put a bid on it or made a contract 315 for this property, we contacted the City to go over issues, we 316 contacted the City to talk about burdens, encumbrances, issues 317 that might impact the property. And beyond the fact that we 318 thought we could have a 30 foot rear setback at that time based 319 on conversations with the City, there was no discussion about a 320 sanitary sewer being any encumbrance on the property whatsoever. 321 CHAIR WILLIAMSON: Okay. 322 MR. BARTLETT: So there was certainly due diligence on 323 our part to determine what was there and then to determine what 324 we could do. It wasn't until 2 months after we purchased the 325 property and started -- contract in April and met with you in 326 July, June timeframe, right, to talk about what we could build 327 and then we found out that we had a 40 foot rear setback because 328 of a different discussion. 329 So we've tried to figure out ways to not deal with 330 outside of our setbacks and that was our goal, to not have to go 331 through this, because we have this nice, beautiful piece of 332 property but now we're in a situation where we're seeking a 333 variance for that. 334 CHAIR WILLIAMSON: And I'm looking at this page, which 335 is the proposed house siting. And forgive me if you went 336 through this in your presentation, but part of the house is 337 sitting on top of where the sanitary sewer is. Am I looking at 338 that correctly? 339 MR. SHREFFLER: No. Actually the orange-dashed line 340 represents the building restriction line as it is today. The 341 shaded, the lightly shaded box, where the house and garage are, 342 is the footprint, the foundation of the home. The black squares 343 to the east or the right side of your sheet are footings for the 344 porches. 345 CHAIR WILLIAMSON: Okay. And so then how many feet -- 346 it looks like you're about, between 7-8 feet, one of the 347 footings of the porch is about 7-8 feet from the sanitary sewer. 348 MR. SHREFFLER: No, it is actually 10 feet. That is 349 the guideline. That's 10 feet. 350 There is a cantilevered corner of that particular 351 porch that is over top of the footing which is what that 7 foot 352 3 inch number on the deck designates. That is permittable -- 353 we've had conversations with staff about that. That is 354 permittable as long as the foundation itself it 10 feet away 355 from the pipe. 356 CHAIR WILLIAMSON: So you've had conversations with 357 the staff on that, because my next question -- 358 MR. SHREFFLER: We have, yes. 359 CHAIR WILLIAMSON: My next question was, is there any 360 risk posed to, I guess in this case, it would be to the 361 neighbors by placing it there. It sounds like that's 362 permittable -- 363 MR. SHREFFLER: Correct, yes. 364 CHAIR WILLIAMSON: -- and therefore, it's been 365 determined it's not -- 366 MR. SHREFFLER: No, the concern is as Jason alluded to 367 earlier, is that you might undermine the footing if there were 368 work done on the public pipe. And the determination is if we 369 were 10 feet away with the footing, that we would not be in that 370 zone of influence, as they call it. 371 CHAIR WILLIAMSON: I see. Okay. 372 I don't think I have any more questions right now. 373 Do other members of the Board have any questions? 374 MR. SPROUSE: Going back to both of these drawings 375 here, what we're really talking about is the porch, correct? 376 So if you're looking at the second drawing, the 377 engineer drawing, where it would be if the house were made to 378 stay within the existing building, the setbacks, all around 379 back, the only parts that are really encroaching are the porch 380 parts, correct? 381 MR. SHREFFLER: Correct. Yes, however, the structural 382 nature of the porch and the way they wrap and tie together, 383 because we certainly have looked at, well, let's simply modify 384 the porch dimensions and we can fit within the building envelop, 385 but those modifications would drive structural changes that are 386 internal of the box of the home and so therefore, it's not as 387 insignificant as simply making the depth smaller. They drive 388 other decisions that then change floor plans of the family room, 389 staircases, master bedrooms, etcetera, etcetera. 390 MR. SPROUSE: Is this foundational or structural? 391 MR. SHREFFLER: Structural. 392 MR. SPROUSE: Okay. 393 CHAIR WILLIAMSON: Any other questions for the 394 applicant? 395 MR. CALABRESE: We also have to look at impact on 396 neighbors. The neighbors on the left, I don't know what 397 direction that is. What is that, you approach them, what is 398 the -- we have one letter. I don't know where that person lives 399 so if you can clarify that. 400 MS. BARTLETT: Yes, certainly. If you're looking at 401 the property, our neighbors directly to the left are going to be 402 the ones most impacted. And Keith and I went to their homes 403 kind of the day we found out about this. They weren't home at 404 the time so we texted back and forth and then they invited us 405 over to their home on Thursday and we brought this picture 406 pretty much and kind of explained to them what was going to 407 happen and the whole genesis of the issue and they offered on 408 their own to write this letter for you guys. 409 Obviously they're not terribly excited about it. 410 We're not terribly excited about it but we did want to reach out 411 to them. This entire property right here is pretty much back 412 yard neighbors and they won't really be influenced by it. 413 So, yes, and as the letter states, they did not have 414 an opposition to you guys granting our request. 415 MR. SPROUSE: Were the back yard neighbors notified? 416 MR. BARTLETT: We believe everyone adjacent -- 417 MS. BARTLETT: Yes. 418 MR. SHREFFLER: Just by public notice. 419 MR. BOYLE: All the abutting, yes. 420 MR. SPROUSE: But we didn't get a letter from them? 421 MR. BOYLE: We do have a party that wants to read a 422 letter when you reach that part of the Agenda. This is the only 423 letter that staff received. So our standard mailout would have 424 gone 150 feet in all directions from the property perimeter so 425 that would have taken everyone abutting at least. 426 CHAIR WILLIAMSON: Okay. 427 MR. SPROUSE: Forgive me if you guys already said 428 this. When did you find out about this, the setback, sanitary 429 setback for the sewer? 430 MS. BARTLETT: Well, we originally found out about it 431 during the site plan which was back in August. That was almost 432 six and a half weeks ago. And then we were notified by the City 433 about the change from the 5 foot to the 10 foot, it was Tuesday. 434 MR. BARTLETT: In late August. 435 MS. BARTLETT: No, it was September. It was two weeks 436 ago. 437 MR. BARTLETT: Three weeks ago from today I think. 438 Late August or the 1st of September. 439 MR. SHREFFLER: I don't know the exact dates, but, 440 yes. 441 MS. BARTLETT: I can look at emails. 442 MR. SPROUSE: You have emails? 443 MR. BARTLETT: I do not have them on the table, I have 444 them -- 445 MR. SPROUSE: Yes, please. I'm just curious. 446 MR. BARTLETT: And then we reached out to the City to 447 try to clarify some issues, try to provide some alternatives. 448 We asked them to move the pipe. We asked whether or not we 449 could create some sort of legal document that would say, If and 450 when there is ever an issue with this pipe, you will move it to 451 its proper location such that you actually -- you don't need to 452 worry about this now. 453 The City was not interested in that, even though they, 454 if they have to repair it, they're going to have to repair it 455 somehow anyways. 456 And then we came up with the alternate solution of 457 we'll move it 10 feet away. The variance was discussed as the 458 best option, and then we could cantilever it over I believe like 459 two feet. 460 MR. SHREFFLER: Yes. 461 MR. MISLEH: John, one thing I want to clear up on 462 this, and this may be the City engineer, but is the required 463 clearance from the sanitary sewer line documented anywhere in 464 the Code? 465 MR. BOYLE: I think it's best practices. Policy as 466 opposed to Code. 467 MR. MISLEH: And is it currently documented at 10 468 feet, policy, or are these guidelines presented on a 469 case-by-case basis? 470 MR. WIDSTROM: So as Mr. Shreffler had mentioned that 471 the overhang is acceptable and that's solely based on the site's 472 evaluation of the conditions. If the pipe were 5 feet in the 473 ground instead of 11, then we would allow it closer. 474 In this case it's rather deep, and so not to undermine 475 the footings of any of the structure in the future, through any 476 repairs that might be necessary. It needs to be a foundation of 477 about 10 feet. That's how we come to that. 478 Now, another project might come before you one day and 479 the depth of the pipe will dictate the terms. 480 CHAIR WILLIAMSON: So we just heard that the closest 481 part of the home which is the porch footing is 10 feet away from 482 the sewer, from the sanitary sewer. 483 MR. WIDSTROM: The foundation, yes. 484 CHAIR WILLIAMSON: The foundation from the porch. 485 MR. WIDSTROM: That's correct. 486 CHAIR WILLIAMSON: All right. And does that present, 487 we heard that might be a problem later on in the event that the 488 City wanted to make a repair to it, is there any risk to the 489 sewer? I mean, this is all within what's normally acceptable. 490 I'm just trying to understand if it is 10 feet away, right, and, 491 you know, this is an informal, there's no official determination 492 made and then it's evaluated on a case-by-case basis as part of 493 the grading plan, it's 10 feet away, where does the issue come? 494 What difference at this point, what I'm trying to understand, if 495 it's actually 10 feet away. 496 MR. WIDSTROM: So the footing is really the one thing 497 we're most concerned about first. So the 10 feet is based on 498 the depth of the existing sewer. There's soil and a pressure 499 that we don't want to mess with, would that we would compromise 500 the structure in the future. 501 So that's the first thing. So that dictates the 502 footing. 503 And the next is can we actually get the equipment in 504 there without wrecking the home. So if you cantilever it at 7 505 feet, that might be an issue, because we wouldn't be able to dig 506 on the height. 507 Our thought with the 7 foot that's shown here, is that 508 would be sufficient for us to get heavy equipment in there to do 509 any work that might be necessary. 510 CHAIR WILLIAMSON: Okay. All right. 511 Any other questions for Mr. Widstrom while he's at the 512 mic? 513 MR. WIDSTROM: I can elaborate on one thing that 514 interests you. 515 About Code, we are currently rewriting our Chapter 42. 516 I can't say that the Council will approve it with language or 517 whether it's sufficiently legal to put it in language but we do 518 want to put something in there about best judgment when it comes 519 to any utility that's under the ground that we might come 520 across. 521 A lot of the utilities in the City were put in in the 522 40s, 50s, and early 60s. Before we had some of the technology 523 that we have today for accurate location. So it's not uncommon 524 that we're finding pipes outside of easements. No easements 525 were gotten. There was a heck of a lot of building going on 526 around the City at the time and people just didn't afford things 527 it seems. 528 We're looking to kind of correct that as we find 529 these. We want to put easements on them but we want to get the 530 right language. 531 About five years ago my predecessor and some other 532 individuals also approved a house on top of a pipe, which is 533 just not something that you want to do. If there's ever a 534 blockage in that pipe, you need to get to it. If you do not get 535 to it, it would be a case where you'd have sewer running through 536 people's back yards. 537 So what we're doing now is a much smarter approach and 538 we're trying to get it codified probably in less than a year's 539 time. 540 MR. CALABRESE: Strictly speaking from an 541 administrative law standpoint, new ordinances, laws, 542 regulations, really always have to go through due process in 543 order to comment. So, I don't know how you would enforce, 544 frankly, a requirement that hasn't been through the process or 545 as you said, hasn't been codified. You know, there's judgment 546 issues, I understand. Maybe this is in that category. 547 But again, from a strictly legal standpoint, you can't 548 impose requirements unless they've been through notice and 549 comment and basic due process. You can't take people's rights 550 away without that process. It's a fairly -- I assume the 551 Virginia Constitution has that and the Federal Constitution has 552 that as well. 553 MR. WIDSTROM: We're definitely focusing, in my 554 conversations with Mr. Shreffler is about the best thing for the 555 City and homeowners is to not have a structure that could become 556 a problem in emergency. 557 Irregular settlement is another issue that could just 558 happen too. 559 MR. SHREFFLER: You asked for the dates. 560 July 27th was when we were initially notified of the 5 feet. 561 August 25th was the notification of the revision. 562 CHAIR WILLIAMSON: And July 27th, we heard earlier 563 that was an informal conversation or ongoing conversation with 564 the City. 565 MR. SHREFFLER: We had email exchanges, yes, that was 566 prior to our design asking for direction. 567 CHAIR WILLIAMSON: Okay. So 8-25 would have been when 568 the formal grading plan was -- 569 MR. SHREFFLER: Well, to correct something that Jason 570 actually said, we did not present a formal grading plan. I 571 think it was Kimberly I think involved. So we were nearly, we 572 were at that point of ready, we are ready, prepared to submit it 573 but we were then notified just prior to submission that there 574 was going to be a problem. 575 So formally, officially, there has been no submission. 576 CHAIR WILLIAMSON: I see. 577 MR. BOYLE: That's a point that may need to be 578 clarified for the Board. From my understanding, was the grading 579 plan preparation underway concurrently with the house plans? 580 MR. SHREFFLER: Yes. Once the house footprint is 581 established, I begin grading plan preparations. So the grading 582 plan is 80 percent complete, short of arborist data. 583 MR. BOYLE: It may help to explain to the Board what 584 the grading plan is from your perspective. Probably what 585 normally comes before this Board, what looks very familiar to 586 this Board, I'm guessing, is those house plans and the footprint 587 of the house but we don't see grading plans with this Board. 588 That's a concurrent process that's a significant one. 589 I think we'd all benefit if you'd explain. 590 MR. SHREFFLER: Sure. Certainly. 591 So, two parts of any redevelopment of a single family 592 home or any parcel is your house plans, of course, and then 593 concurrently is the civil drawing. Civil engineers will design 594 proposed grading for the new home, addressing water runoff, 595 storm water management, quality controls, volume, as well as 596 enlisting arborists to do on-site tree surveying work, 597 redevelopment of a new tree preservation plan. 598 So it's extensive. And if we were to change the 599 footprint of the home, those grades and all of those 600 calculations are therefore also revised, resulting in not only 601 time, of course, but money for a civil engineer. 602 CHAIR WILLIAMSON: Okay. Are there any other 603 questions for the applicant? I do want to hear, it sounds like 604 there's someone who would like to read a letter. 605 Is there any question for this applicant at this 606 point? 607 (No response.) 608 CHAIR WILLIAMSON: We may return with some additional 609 questions. 610 At this time I'll ask is there anyone present that 611 would like to speak on this matter? 612 Please step forward and you're going to sign in and 613 there's a microphone right there. 614 Can you state your name and then we'll have you sworn 615 in. 616 MR. HUNDLEY: Jon Hundley. 617 (Witness sworn.) 618 CHAIR WILLIAMSON: I do need to ask, your name and 619 address. 620 MR. HUNDLEY: I live on Poplar Drive, 1008, but this 621 is a letter from a resident on Jackson Court, Anne Camper. She 622 lives at 1101 which is on the corner of Jackson and Jackson 623 Court. 624 CHAIR WILLIAMSON: Okay. 625 MR. HUNDLEY: I'll read the letter. 626 CHAIR WILLIAMSON: Camper, what's the name again? 627 MR. HUNDLEY: Camper, C-a-m-p-e-r, Ann. 628 CHAIR WILLIAMSON: Anne Camper, okay. 629 MR. HUNDLEY: The letter goes: I have been a 630 homeowner in Falls Church City for nearly 25 years. I'm asking 631 the Board of Zoning Appeals to deny this variance and preserve 632 the existing setback requirements applicable to 1105 Jackson 633 Court. 634 As a general matter, the setback requirements at issue 635 are reasonable. They were developed for the benefit of the 636 community as a whole. They should be applied evenly within this 637 low density, residential setting. 638 Existing draining issues on Jackson Court make it 639 imperative to exercise caution in this case. Homes on the 640 Court, particularly on the east side, have suffered drainage 641 problems for years. 642 An underground stream, Reagan Run, flows beneath the 643 properties on the north side of the Court. Construction of a 644 larger house at 1105, located on the northeast edge of the 645 Court, seems very likely to exacerbate this situation. 646 Permitting the footprint of this house to extend beyond the 647 existing setback requirements would be unwise. 648 Thank you for your attention and listening to my 649 concerns. Anne Camper. 650 CHAIR WILLIAMSON: Thank you, sir. 651 Any questions? 652 MR. CALABRESE: Where does this property relate to the 653 property in question? In the letter, where is she in relation 654 to this? 655 MR. BARTLETT: She's directly across the street. 656 MR. HUNDLEY: No. She's on the same side of the 657 street, the second house back. Jackson Court -- 658 MS. BARTLETT: This is Jackson and this is the Court. 659 And our property is right here. She's right here. 660 MR. SPROUSE: So you've got your next door neighbor 661 and she's the house directly after. 662 MR. BARTLETT: Correct. 663 MR. SPROUSE: So the letter in support and she's at 664 the Street and the Court. 665 MS. BARTLETT: Yes. 666 MR. CALABRESE: Does the City have an opinion on the 667 drainage issues, engineer? Is he still here? 668 CHAIR WILLIAMSON: Any further comments, further 669 questions for the applicant or for the speaker? 670 All right. We do have questions for the engineer, so 671 if you would please step forward and answer this question. 672 MR. WIDSTROM: Sure. What was the question? 673 MR. CALABRESE: The letter, the neighbor was noting 674 that they were opposed to the variance because they were 675 concerned about drainage problems that would result from the 676 house or a larger house, one of those two. Do you have 677 comments? I mean, is that a valid claim, in your opinion, a 678 valid concern? 679 MR. WIDSTROM: Well, I'm not aware of any existing 680 storm water issues with the network there. As part of the 681 grading plan development, they're required to show how they 682 comply with our Storm Water Ordinance. They're allowed up to 35 683 percent impervious coverage. Anything that's peak flow, 684 increases would have to be offset onsite. Sheet flow is 685 acceptable. It's reasonable interference. 686 MR. SHREFFLER: If I may add actually, the proposed 687 impervious is -- I actually don't have the data points in front 688 of me here but if the impervious area is slightly larger than 689 the existing, if at all, it's very negligible in terms of what 690 we are creating. 691 So I would understand the concern if we were asking 692 for a larger footprint but we're not. 693 MR. SPROUSE: That's not part of our purview. 694 CHAIR WILLIAMSON: Are there any other questions for 695 the applicant at this time? 696 (No response.) 697 CHAIR WILLIAMSON: Anything else you'd like to say? 698 MR. BARTLETT: Just thank you for your time. We 699 really appreciate you having this Special session. We are 700 running into some time issues with our bank, in our loan, and 701 our -- 702 MS. BARTLETT: Our rental lease. 703 MR. BARTLETT: We're renting Winter Hill. We sold our 704 house on Marshall which is right behind there. We've lived here 705 for a long time and plan to stay. 706 Thank you. 707 CHAIR WILLIAMSON: Thank you very much. Then we'll 708 close it to the gallery and to the applicants and we'll have 709 discussion amongst the Board and then we'll move to make a 710 decision on this. 711 Is there any discussion amongst the Board? 712 MR. CALABRESE: Yes. I guess what purports to this, 713 one is the discussion of the harm, what we have to judge this 714 variance by, and then there's these kind of extraneous situation 715 or circumstances related to the information, misinformation, 716 withheld information about the sanitary sewer. 717 If we were looking at this thing in a vacuum, just in 718 terms of a variance and the harm suffered, I would say no. 719 Because we had this Special Session, we're very glad to do it, 720 but the presentation, as I mentioned, said this is the best way 721 to do it, a better way to do it, it's expensive, there's more 722 time involved, I understand your situation. 723 But under our mandate, we're not supposed to look at 724 that. We're supposed to look at what is that harm. And 725 petitioners always come in and say there's no other way to do 726 it. 727 And you were honest. You said there's probably 728 another way, we just don't want to do it. It's just going to be 729 too much trouble. 730 Under that type of circumstances, I would recommend 731 deny. 732 However, I do recognize these unusual circumstances. 733 I'm a little concerned about the way the City made a new rule 734 that seems to be, you know, secret of some sort or not public 735 and that's not really allowed under the law. So that weighs 736 heavily on me. So I think that weighs more heavily on my 737 decision. 738 But I'll just state that -- you're the builder, right? 739 MR. SHREFFLER: Correct. 740 MR. CALABRESE: Just in the future, before this body, 741 it has to be you have to show harm. You have to show really 742 distinct harm and a lack of alternatives. And I guess I'm a 743 little troubled by that first description. 744 However, I understand these are the circumstances 745 which I think I would take into account. 746 CHAIR WILLIAMSON: Are there any other comments 747 amongst the Board members? 748 MR. BOYLE: Mr. Chair, before the Board calls the 749 question, could you offer the continuation for lack of a full 750 Board? 751 CHAIR WILLIAMSON: Thank you, Mr. Boyle. 752 We normally have five members here. We do have one -- 753 not a full Board here tonight. We called a Special Meeting but 754 because we do not have a full Board here, and you would need 755 three out of the four, you are eligible to have it to continue 756 to the next month. 757 So before we make the decisions on this, I did want to 758 ask you if you wanted to continue this to next month. I think 759 it would be our regularly scheduled meeting. 760 MS. BARTLETT: We can always later say -- 761 MR. BOYLE: You have the option, depending on the 762 Board's decision, anyone can appeal that decision within 30 763 days. You can also request that they reconsider. 764 You ready to proceed? 765 MS. BARTLETT: Yes. 766 CHAIR WILLIAMSON: Thank you, Mr. Boyle. 767 MR. SPROUSE: I do have one more question. 768 CHAIR WILLIAMSON: Yes. Go ahead. 769 MR. SPROUSE: Is any other existing home in the 10 770 foot setback on the sewer? 771 MR. SHREFFLER: I do not have those in front of me. I 772 don't believe they are. 773 MR. BOYLE: Does the overlay show that? 774 MR. SHREFFLER: The overlay did not. 775 MR. SPROUSE: It shows the 10 foot setback. I mean 776 it's very close, when you're looking at the pictures, it looks 777 very close to the tree line but I just wanted to know if any 778 other existing properties are in that line. 779 MR. SHREFFLER: I highly -- it most likely isn't but I 780 will say because they have their screen porch within their rear 781 setback, actually, so the back of our proposed property, the 782 home, is at the rear setback. But it's because the screened 783 porch for the existing house is to the rear, so it's not to the 784 side. So I don't think there is anything. 785 It might be tight, but I don't think so. 786 MR. BOYLE: Do you recall if we provided a plat of the 787 existing property? 788 MR. SHREFFLER: I did not provide it to you all. I do 789 have one. 790 MR. BOYLE: I wonder if we have that on our system, if 791 the Board would give me five minutes. That would show, what I'm 792 hoping we have is a plat of the existing house, and if that 793 engineer that did that survey showed the limits of the easement. 794 CHAIR WILLIAMSON: I think we would like to get the 795 answer to that question. We'll take a five minute recess. 796 We'll reconvene at 8:25 and answer that question. 797 (Recess taken.) 798 CHAIR WILLIAMSON: Please proceed. 799 MR. BOYLE: Yes. Unfortunately the plat we have is 800 from 1950 and does not show any information specific to the 801 easement or the pipe. In fact, I wonder if this predates the 802 pipe itself. 803 What I did print off for the Board is the color 804 mapping data that does show more clearly where the City data 805 indicates where the pipe and the easement are. 806 And I don't think we consider this survey-accurate but 807 I think it may reflect an intent by the City to have run that 808 pipe down the property line. 809 Do you have anything to add, Jason? 810 MR. WIDSTROM: No. I would not infer any distance on 811 any of this. 812 MR. BOYLE: Okay. 813 CHAIR WILLIAMSON: Okay. We're not able to determine 814 the answer to the question. 815 MR. BOYLE: Yes. The data just isn't specific. 816 MR. SHREFFLER: If I may, I have an electronic version 817 of an existing survey that was done at closing. 818 The dimensions are not given but it looks to be approximately 12 819 feet or so off of the pipe. 820 CHAIR WILLIAMSON: The existing home. 821 MR. SHREFFLER: Yes. 822 CHAIR WILLIAMSON: Okay. Thank you for that. 823 Well, I guess what I would say on this matter is that 824 Mr. Calabrese provided a very good summary of the situation in 825 terms of how we normally will evaluate these kinds of cases. 826 And there is criteria that we follow and in this instance, there 827 are also these additional factors which are also unusual 828 circumstances which are troubling. And we have the applicant 829 then received information and proceeded in good faith to build a 830 design and on the very end of that process receive new 831 information. 832 So, what I would like to say is that these are, these 833 circumstances regarding communication regarding this easement 834 is, I think that's material and specific to the situation. 835 We're not changing our criteria as we look at future variances 836 but I think that's a very strong factor in this and I do have 837 empathy for the homeowners, the property owners in this case. 838 And I would like to see the City as they are moving 839 toward formally putting these determinations into the Code, or 840 have more clear guidelines that property owners can abide by as 841 they invest time and money. 842 So, with that, are there any other comments anyone 843 else has? 844 (No response.) 845 CHAIR WILLIAMSON: Anyone on the Board care to make a 846 motion? 847 MR. SPROUSE: I'll make a motion. 848 I'll make a motion to approve variance application 849 V1594-17 by Scott Shreffler, contractor, and Keith Bartlett, 850 owner, for a variance to Section 48-238(3)(a) to allow a side 851 yard setback of eleven feet instead of fifteen on the west side 852 of the house, and a rear yard setback of thirty-five feet 853 instead of forty feet to construct a single-family house on 854 premises known as 1105 Jackson Court. 855 CHAIR WILLIAMSON: Is there a second? 856 MR. MISLEH: Second. 857 CHAIR WILLIAMSON: Roll call vote. 858 MR. BOYLE: Mr. Sprouse. 859 MR. SPROUSE: Yes. 860 MR. BOYLE: Mr. Misleh. 861 MR. MISLEH: Yes. 862 MR. BOYLE: Mr. Williamson. 863 CHAIR WILLIAMSON: Yes. 864 MR. BOYLE: Mr. Calabrese. 865 MR. CALABRESE: Yes. 866 CHAIR WILLIAMSON: Congratulations. You have a 867 variance on your project. 868 MR. BARTLETT: We really appreciate it. Thank you so 869 much. 870 871 7. OTHER BUSINESS 872 CHAIR WILLIAMSON: I see no Other Business before the 873 Board. 874 875 8. ADJOURNMENT 876 CHAIR WILLIAMSON: Can I get a motion to adjourn? 877 MR. MISLEH: Motion to adjourn. 878 CHAIR WILLIAMSON: Is there a second? 879 MR. SPROUSE: Second. 880 CHAIR WILLIAMSON: Roll call vote. 881 MR. BOYLE: Mr. Williamson. 882 CHAIR WILLIAMSON: Yes. 883 MR. BOYLE: Mr. Calabrese. 884 MR. CALABRESE: Yes. 885 MR. BOYLE: Mr. Sprouse. 886 MR. SPROUSE: Yes. 887 MR. BOYLE: Mr. Misleh. 888 MR. MISLEH: Yes. 889 890 CHAIR WILLIAMSON: This meeting is adjourned. 891 892