Board of Zoning Appeals

1 REGULAR MEETING OF THE BOARD OF ZONING APPEALS 2 VIRTUAL PUBLIC HEARING 3 Thursday, May 14, 2020 4 7:30 p.m. 5 6 MS. ROUZI: The meeting for which this agenda has been 7 posted will be held pursuant to and in compliance with the 8 Virginia Freedom of Information Act, Section 2.2-3708.2 and 9 state and local legislation adopted to allow for continued 10 government operation during the COVID-19 declared emergency. 11 12 1. CALL TO ORDER 13 MR. JONES: This is Roy Jones and I would like to call to 14 order the Thursday, May 14, 2020, meeting of the Board of Zoning 15 Appeals. 16 Could we have a roll call please. 17 18 2. ROLL CALL 19 RECORDING SECRETARY: Mr. Jones. 20 MR. JONES: Here. 21 RECORDING SECRETARY: Mr. Calabrese. 22 MR. CALABRESE: Here. 23 RECORDING SECRETARY: Mr. Kien. 24 MR. KIEN: Here. 25 RECORDING SECRETARY: Mr. Misleh. 26 MR. MISLEH: Here. 27 RECORDING SECRETARY: Mr. Bartlett. 28 MR. BARTLETT: Here. 29 RECORDING SECRETARY: Thank you. 30 MR. JONES: Akida, procedurally should we take a roll 31 call of the members of the public who are present as well? 32 MS. ROUZI: Sure. I think we just have them sort of 33 introduce themselves, if that's okay, because I don't have their 34 names. But I can see Chris Fogle, Elaine, and that's it. 35 MR. FOGLE: Yes. Hi. This is Chris. Can you hear 36 me? 37 MS. ROUZI: Yes, we can hear you. 38 MR. FOGLE: Hi. Yes, I'm just a neighbor two doors 39 down. I live on the corner of Park Avenue and Pennsylvania 40 Avenue and so I just wanted to join and just kind of see, just 41 hear about the application. Thank you. 42 MS. ROUZI: Thank you. 43 MR. BOYLE: I guess we should have some formal 44 statement about who else is present and intends to speak. 45 Inconvenient to raise your right hand, but maybe at least get it 46 on the record, maybe starting with the applicant. If the chair 47 would ask who's present on behalf of the applicant and then 48 maybe members of the public who intend to speak. 49 MR. JONES: Thank you, Mr. Boyle. 50 With that, if you intend to speak or testify before 51 this Board tonight regarding this application or in general, we 52 could virtually raise your hand and swear that you will tell the 53 truth and nothing but the truth before this Board. 54 And with that, if you wouldn't mind stating your name 55 for the record and your relationship to either the applicant, 56 the application before this Board, or if you're making a 57 separate Petition. 58 So I think we'll start, if you have a new Petition 59 unrelated to this application, could you please state your name. 60 MS. ROUZI: I believe the applicant Andrew just signed 61 in. I think that was after everything you said, Mr. Jones. We 62 might want to repeat that. 63 Andrew, can you hear us? 64 Andrew, can you hear us? Can you unmute yourself? 65 We can't unmute him. He's on mute. 66 MR. CALABRESE: You can do a chat function with him 67 probably if he's not responding. 68 MR. BOYLE: That's right. Is everyone familiar with 69 the buttons at the bottom of your window? I personally have 70 been through a couple of these meetings, Akida, a few more, so 71 I'm going to rely on her for operating it. 72 Andrew, if you can hear us, you should have a 73 microphone button at the bottom of your screen to mute and 74 unmute. 75 MS. ROUZI: You got it. 76 Andrew, can you hear us? 77 MR. COLANGELO: I can see this. Can you guys hear me? 78 MS. ROUZI: Yes, we can hear you. 79 Andrew, can you hear us? We can hear you. 80 I'm sending a text. 81 MR. COLANGELO: I cannot hear you guys though. 82 MR. BOYLE: All right. We hear you and see you now. 83 MR. COLANGELO: My first time on Skype screenshare. I 84 just have to adjust my settings. 85 MR. BOYLE: Andrew, we can see and hear you now. 86 (Working out audio problems.) 87 MR. JONES: Sir, it's our understanding you are the 88 applicant for the variance application tonight. 89 3. PETITIONS 90 MR. JONES: We don't, to my knowledge, have any 91 Petitions. 92 So if you would, sir, if you wouldn't mind, just 93 swearing to tell the truth and the whole truth before this Board 94 tonight, if you'd raise your virtual right hand. We can swear 95 you in, and if you so swear, then you could please state your 96 name for the record. 97 MR. COLANGELO: My name is Andrew Colangelo. 98 MR. JONES: Thank you. 99 100 4. OLD BUSINESS: 101 MR. JONES: Mr. Boyle, I don't belive we have any Old 102 Business and other than the Approval of the Minutes, this 103 variance application is the only Agenda items tonight, is that 104 correct? 105 MR. BOYLE: That's correct. 106 And, Akida, have we lost a Board member or two? Is 107 everyone present? 108 MR. ROUZI: I wasn't looking. Hang on. Everybody's 109 here. 110 MR. BOYLE: I was marveling at our full Board. Well 111 done. 112 Do you want to read the Agenda item into the record, 113 Chair, please. 114 MR. JONES: Yes, sir. 115 116 5. NEW BUSINESS 117 Variance application V1615-20 by Lauren and Andrew 118 Colangelo, applicant and owner, for a variance to Section 119 48-1102(c) to allow a front yard setback of 25 feet instead of 120 32.2 feet, for the purpose of constructing a new single family 121 dwelling on premises known as 610 Park Avenue, RPC #51-129-035 122 of the Falls Church Real Property Records, zoned R-1B, Medium 123 Density Residential. 124 125 MR. JONES: The Agenda item is under New Business. 126 And this is for variance application V1615-20 by Lauren and 127 Andrew Colangelo, applicant and owners, for a variance to 128 Section 48-1102(c) to allow a front yard setback of 25 feet 129 instead of 32.2 feet, for the purpose of constructing a new 130 single family home dwelling on premises known as 610 Park 131 Avenue, RPC #51-129-035 of the Falls Church Real Property 132 Records, zoned R-1B, Medium Density Residential. 133 With that, Mr. Boyle, would you mind presenting 134 please. 135 MR. BOYLE: Yes, sir. Thank you. 136 Thanks to the Board and the applicant and members of 137 the public for participating in this. We can say it's unique at 138 the moment because it's never happened before for the BZA. 139 Council has been meeting remotely for some time. But highly 140 unusual and to have all this technology come together and move 141 these important public applications forward is a great relief. 142 Staff was beginning to wonder when our next public 143 hearing would be as well as the Boards related to this. We have 144 a HARB application that's been waiting that needs to come to the 145 BZA as well. 146 So thank you for pulling all your technical skills 147 together in what's a very unusual time for us and this Board. 148 With regard to this particular application, it's 149 before you tonight because a recent decision by the City 150 Attorney has directed staff to apply the Code sections that 151 speak to yard averaging for front yard setbacks. There's a 152 parallel conversation going on about a potential Code amendment 153 to that but after considerable conversation with the City 154 Attorney, staff has been directed to apply that section. 155 What it is simply, is that the Code states that the 156 front setback for a given property will be determined by the 157 average of the yards of the properties on either side, and 158 there's some provisions for what happens if there isn't a house 159 on the other side. 160 So what happens in this case is, we start off with the 161 basic front yard setback of 25 feet and then when looking at the 162 houses on either side, it's pushed back some distance. And this 163 yard has got some challenges as far as orientation. It's a 164 rectangle, it's kind of rotated 90 degrees. And when that front 165 setback is pushed back, it has a dramatic impact on placement of 166 the house. 167 So they're essentially asking for a variance to the 168 averaging requirement and dropping it down more resembling what 169 the basic front -- I'm not sure what to call it, the standard 25 170 foot setback without averaging. 171 The Board should have three emails in support of this 172 application and then a fourth email that came in just tonight 173 that we sent that expressed some concerns about the appearance 174 of the street along the frontage. 175 And I don't think we forwarded that to the applicant. 176 Akida, if you received that and could send that. Everyone else 177 should have that. 178 There was a question earlier in the week, I think from 179 Mr. Calabrese, about whether this was Code and whether you would 180 be waiving something out of your authority. 181 It is Code. It is a Code section that staff has not 182 applied for many years. The reason behind that is probably best 183 saved for another discussion and there is a potential Code 184 amendment in place that we're supporting. 185 However, the City Attorney felt that this is what the 186 Code wants and so the front yard setback for this property is 187 determined by the yards on either side. 188 And you'll hear in the applicants' presentation why 189 that imposes an undue hardship and why they think it would be 190 reasonable to obtain relief from this Board. 191 If no one received that last email, please let me 192 know, I'll make sure you see that and we'll get that to the 193 applicant. 194 It's essentially a front yard setback variance. This 195 Board over my tenure has seen I think two of these. So there is 196 some precedent for this Board hearing variances for averaged 197 front yards. 198 In those cases, the applicants just didn't want to run 199 into a potential appeal over if they went with the standard 200 setback, would someone object and say you need to do the 201 averaging. So they went ahead and asked for variances to the 202 averaging, the setback produced by the averaging. 203 So there is a precedent for this Board to hear this. 204 And I say that as confirmation that this is a Code provision. 205 It's very unusual to have an averaged front yard variance come 206 before this Board. But it is a Code Section and it is within 207 your standard authority to review like any other variance that 208 you hear. 209 So consider it or look at it in terms of a front yard 210 setback is X and they're asking for relief for the reasons that 211 you'll hear. 212 With that, I think I'll defer to the applicants' 213 presentation. 214 MR. CALABRESE: So, John, I don't think I saw all of 215 the neighbors' emails. I saw one from one neighbor that was 216 supportive. It sounds like there's some others that came in, so 217 if you could please forward that to me. It sounds like you said 218 one of them was negative, so I'd like to see that. 219 But the other question is so, I guess maybe I didn't 220 know the Code, we didn't understand the Code that well, but 221 there's always been a standard setback as you noted, but you're 222 saying as an option it's rarely used as an averaging setback. 223 Are they both available, is what you're saying, you can either 224 apply a standard setback or an averaging setback, is that how 225 the law is written? 226 MR. BOYLE: It is in the Code. And it does reference 227 the front setback will be the average of the yards on either 228 side. 229 Staff's problem for many, many years has been, and 230 this is getting into a little bit of the weeds of the Code 231 amendment we're trying to process, once upon a time the Code 232 said "average the yards" and then when you go over to the 233 definition of what a yard is, it would speak to the actual 234 position of the building. 235 At some point there was a Code amendment that dropped 236 that building reference and so it left the Code in this 237 perpetual loop of "average the yards." Well, the yard is 25 238 feet, so the average of 25 and 25 is 25. So for that reason, 239 staff has been trying to get a Code amendment over several 240 years, but that language is still in there, that you average the 241 yards on either side. 242 So it's not so much that it's an option but it's a 243 question of, is this inapplicable Code, is this Code that should 244 be applied, should it not be applied, or is it, what is the 245 intent of this Code section when it mentions averaging. 246 Each City Attorney, until the present one, felt that 247 it was a typo of some sort and so staff has not applied it. 248 Over the years there's been an appeal or two. There 249 have been homeowners that felt, you know what? I'm a little 250 nervous about getting into the ninth inning of my project to 251 have somebody appeal this averaging word, so they've applied for 252 variances over the years. 253 I've been Zoning Administrator since 2002 and I have 254 not applied this Code Section as averaging. What's changed is 255 the current City Attorney recently felt that it was intended to 256 average, even though it's not worded to include the building, 257 that there must be some intent there. 258 So we had a major change in our approach towards 259 these, how do we determine what the front yard is on a 260 residential property? And that's very recent. That's about 261 January of this year. 262 In speaking with the applicant, they had the choice 263 of, Well, the Zoning Administrator could say your setback is the 264 average of the properties, and he could appeal that; or we could 265 say your setback is 25 feet and risk the appeal of a third 266 party. And he said, you know what, let's just go ahead and ask 267 for a variance to the yard averaging requirement. Which in 268 conversation with the City Attorney said was legitimate. If 269 that's what the Code wants, they can request and make a case for 270 a variance against the averaging piece. 271 So getting back to your question, Mr. Calabrese, it's 272 not an option. I think the City Attorney would say, and I can 273 interpret her point, is that is what the Code is. We are to 274 average the properties on either side. And so they're here for 275 good old vanilla variance to a setback. 276 The number will be unusual because it's based on where 277 the buildings are on either side. So it won't be a variance to 278 25 feet, it would be a variance to where the neighbors placed 279 their houses, if that helps. 280 MR. CALABRESE: Okay. Essentially what you're saying, 281 until this Code is changed -- this is not relevant for this 282 applicant -- but all future variance applications are going to 283 be applications to this averaging, they're going to be a 284 variance to the averaging. Because you're saying we're now 285 interpreting the setbacks as strictly as what's in the Code 286 which is an average of the neighboring houses. 287 So until it's changed by the legislature or the City, 288 we're now going to be doing that; is that correct? 289 MR. COLANGELO: What's crazy too, sorry, guys, to jump 290 in, I was talking with John about this or I was reading the 291 Code, and, John, I don't have the Code up in front of me but 292 it's kind of crazy language. It's like any addition which is 293 being made to a house, to have an addition approved, I believe 294 this, John, the front of the house has to be the average. 295 So I believe the way the Code technically reads, if 296 you want to add an addition to the back of your home that 297 doesn't violate the back of the yards setbacks, in order for 298 that addition to be approved, the front of the house has to be 299 at the right setback, is that accurate, John? 300 MR. BOYLE: Yeah, that's essentially -- 301 MR. CALABRESE: I asked a different question, John. 302 Thank you for that. 303 I'm just asking, are we now, as a matter of process 304 for this Board, when we hear these variance applications, it's 305 now going to be a variance of the averaging because of the new 306 interpretation of the City Attorney, is that correct? 307 MR. BOYLE: That's correct; however I'd say the 308 majority of the houses are built to an identical position. 309 We've studied this extensively and it's remarkable how many are 310 exactly 25 feet on the nose for the entire street. So we won't 311 quibble over a fraction of a foot but where they were trying to 312 hit 25 or 30 in the other zoning district, we take it at that 313 measurement. 314 So we probably won't see too many of these, where in 315 this case a new house is proposed and you've got the two 316 neighbors set further back than the basic 25. What you 317 typically see is everyone is at the 25. So I don't think this 318 is going to come up too often because you'd need several things 319 happening: You'd need probably new construction, neighbors set 320 much further back than what the Code wants and the applicant 321 feels is unreasonable, and then a variance application. 322 Most, by far, the plans we see come in and they show 323 where the neighbors' houses are, they're all set to the minimum 324 front yard, so I don't think we're going to see too many of 325 these. 326 MR. CALABRESE: All right. Thank you. 327 MR. BOYLE: Sure. Let's see if I can find the -- we 328 sent the Code language out on this Section but if the Board 329 would like, I could point you to it and read that into the 330 record. 331 MR. CALABRESE: The only other thing is I don't think 332 I got all the letters from the neighbors. I only got one. 333 Akida, are you trying to send all the letters? I'm sorry. And 334 then I'll stop. 335 MS. ROUZI: The two letters should be part of the 336 application package at the end. 337 MR. CALABRESE: Okay. That's all right. If it's in 338 there, I'll look. Because there was a separate email, I assume. 339 But if that's the case, I'll look at that. So thank you. 340 MS. ROUZI: Yeah, the two additionals were separate 341 emails. I'll forward this one on again. But I'm happy to pull 342 them up on the screen if you can see that. 343 MR. CALABRESE: That's okay. I'm sure it's in here. 344 Thank you. 345 MR. BOYLE: What it comes down to is I think there 346 were three in support and one came in late this afternoon with 347 some concerns, raised an interesting concern. That one, I 348 forwarded a few minutes ago. 349 MR. CALABRESE: Thank you. 350 MR. BOYLE: Where are we? We're in my presentation. 351 Just to summarize, you should have the applicants' 352 package, showing a proposed house, a new house on Park Avenue, 353 and in that package is the setback line as required by the yard 354 averaging, keeping in mind that the basic setback is 25 feet and 355 the averaging would push it much further back. 356 The package includes, as Akida said, some emails from 357 neighbors in support, and then this evening we got one that 358 raised some questions. 359 This is a Code requirement per the City Attorney, that 360 the setback is being varied from is the required setback so 361 we'll leave it to the Board to decide whether the relief sought 362 is reasonable or not. 363 And with that, I think we'll defer to Andrew, the 364 applicant, and his presentation. 365 MR. COLANGELO: Thank you, Mr. Boyle. Thank you, 366 everybody. 367 I'm not like necessarily the best presenter and I 368 didn't know I was going to have the stage, if you will, but glad 369 to jump into this. 370 So I think the simplest way to talk about this is we 371 were a little bit surprised about it as we got into the process 372 because we'd always heard about the various setbacks, 25 feet 373 for this particular area of zoning, and when I talked to both 374 the neighbors on either side of me they said, when I was talking 375 to them about this variance, they said, "Well, how close are you 376 setting it to the street? Isn't the setback 25 feet?" 377 And I was like, yeah, it is 25 feet and I just want to 378 set it at 25 feet but there's a -- so they were surprised about 379 this but I had to explain to them this clause, this averaging 380 clause and how it worked. 381 It's just kind of an odd situation that a property 382 owner's land rights are essentially impacted by the adjacent 383 property, right, where the adjacent properties have decided or 384 their homes have been set, kind of impacts the amount of land 385 that's buildable for the property owner. 386 At the same time, generally I'm a layman here. Just 387 thinking, okay, if I'm setting my house at 25, this generally 388 sounds reasonable. So first I was taking this like reasonable 389 path, like who's not going to think setting their house at 25 390 feet is reasonable, and that's basically where every other house 391 is set at. 392 And then to take it a step further, I started to look 393 into this and I say, okay, I kind of get the gist of why they're 394 saying an averaging rule, so that I think the concept of the 395 rule is so that houses are essentially -- you don't have one 396 house that's right on the street and one house that's, you know, 397 50 feet back and it feels like a kind of to and fro of the 398 various front houses. 399 So I started to look at it further and just a layman's 400 standpoint -- real quick. Can I take control of the screen or 401 is there a way for me to -- I have a map up that I was just 402 going to reference. 403 MS. ROUZI: I don't have it in the packet then, huh? 404 MR. COLANGELO: No, but I'm requesting control right 405 now and if you -- 406 MS. ROUZI: Okay. I'm going to give you control. No 407 problem. 408 MR. COLANGELO: Appreciate it. 409 MR. BOYLE: We can do that? 410 MS. ROUZI: I didn't know that we could. Other people 411 can't control applications -- it says you can't do it, Andrew. 412 MR. COLANGELO: Got you. 413 MS. ROUZI: If you email it to me right now, I can 414 pull it up for you. 415 MR. COLANGELO: Sure. And I'll briefly describe here. 416 I'll take a screen shot here. 417 Who am I emailing this to? 418 MS. ROUZI: Akida. 419 MR. COLANGELO: I'm sure Akida will pull this up in 420 one moment. 421 Just generally, it just sounds a little odd that I 422 have to set it further back but, okay, let me take a look at 423 this. It should be noted also I'm not asking for any other 424 variances. I'm not asking for a land coverage variance and I 425 have support of both of the neighbors here. 426 I'll reference this map in just a moment. 427 MR. CALABRESE: So, Mr. Colangelo, maybe while you're 428 waiting for that to load, just so you know, the criteria by 429 which we will evaluate your variance is on whether this -- 430 whether by granting you or not granting you the variance it 431 provides an undue burden on your ability to build the house in 432 the way that is necessary and if there are no other options. 433 MR. COLANGELO: Yes. 434 MR. CALABRESE: So I understand that the requirements 435 seem odd. That's not, to be honest, completely relevant to our 436 decision-making. So if you want to focus more on the burden 437 this would place upon you and how it would create an undue 438 burden on you. 439 MR. COLANGELO: Yes, and I can get very technical here 440 in a second too. 441 So real quick, I'm sorry, I'm starting layman's 442 perspectives here and then I'll get into the technical side of 443 things. 444 So, houses number 1, 2, and 3, those are all facing 445 Park but less than 25 feet from Park. Some substantially less, 446 less than 20 feet from Park. So that's the one thing that I was 447 going to be referencing there. 448 MR. BARTLETT: Andrew, are you saying that those 449 houses, 1, 2 and 3, face Park Avenue? 450 MR. COLANGELO: So technically they have a front yard, 451 a front yard setback, if you will, that is required on Park. 452 MR. BARTLETT: John, are those corner lots? Do they 453 have two front yard setbacks as corner lots on Park, 454 Pennsylvania, Lee, and it looks like Oak maybe, I'm not sure? 455 MR. BOYLE: Exactly. Those are our famous corner lots 456 built before 1980 that the Board usually sees front yard setback 457 variances on. 458 Those houses were built at a time where the narrow 459 frontage was considered the front and would have been the full 460 setback of 25 or 30 feet. Then the other street frontage was 461 known as a street side yard. It had its own setback which was 462 one half of the neighbor's. So it would be basically one half 463 of the 25. 464 So looking at number 2, the property to the left was 465 probably set at 25 feet, so number 2 along Park was only 466 required back then to be one half of that neighbor's. 467 So this Board sees a lot of variances for corner 468 properties because of that. In the 1980s that street side yard 469 being one half of the neighbor's fell out and the street 470 frontage setback became a full 25 or 30, depending on the zoning 471 district. 472 So I think that's what the applicant's pointing out, 473 is we have this, all those corner houses now are built to the 474 old Code of probably 10 or 12 feet. 475 MR. COLANGELO: Yeah, it's quite close to that street. 476 Again, I'm in my layman's section of this just 'cause, 477 I don't know, I figured I'd hit it with both angles but the 478 layman's section just -- and mostly that this is the reference 479 of both of my neighbors that they were just surprised that I had 480 to even seek a variance if I'm only going at 25 feet. 481 But also, let's get into technical side of things. 482 What's interesting and what is unique about this particular lot 483 which I know I have to show an undue burden based on this 484 particular lot, this is an interesting lot. 485 Of these R-1B lots, only -- hold on. There's only a 486 certain few, Park Ave and Mr. Tire on Falls Ave which have front 487 lots facing mixed use and commercial zoning. 488 The general point here on Park Ave, is that they're 489 facing mixed use and commercial, like some really, really dense 490 uses are going to be coming in right across the street from us. 491 Trust me, if I could buy a house on North Lee or Riley or 492 somewhere nice and quiet, quite a pleasant residential feel, I 493 would appreciate doing that. But this house on Park happened to 494 pop up and I wanted to take advantage of that. 495 But my general point here is R-1B is, this area of 496 Park Ave is unique because it faces mixed uses. It's different 497 from practically all the other R-1B lots with the exception of 498 Mr. Tire. 499 So in general, the blanket application of R-1B lots 500 and just kind of what those are facing is different for 501 generally for Park. 502 And as your searches hone on this particular lot 503 further, this one is the shallowest, so this is a unique set of 504 circumstances, the shallowest interior lot that's on Park. So 505 because of that, I can't change the orientation of my house. 506 The front of my house has to be facing Park. It has to be 507 facing mixed use. 508 MR. BOYLE: Andrew, sorry to interrupt. I think it 509 would be very helpful to get into the record the documentation 510 in support of your variance. I think you make some very good 511 points there. 512 The secretary has those, but it would be excellent to 513 read through the points that you made in your justification, if 514 only to get it into the record and the Board would benefit by 515 hearing from the argument that you made. 516 MR. COLANGELO: Sorry. I'm trying to summarize these 517 points but I'm not the most eloquent speaker. 518 So, would you like me to basically read through these 519 bullet points? 520 MR. BOYLE: Yeah, that's what folks typically do. 521 This is very much as informal a formal conversation you'll have, 522 formal hearing that you'll have. It's very much a conversation 523 with the Board. 524 So, by all means, present your application in support 525 for the variance. I thought that was clear, then I could 526 explain it, which is why I deferred right off the bat. It's a 527 very concise application. 528 MR. COLANGELO: Got you. Sorry. I'm trying to be 529 smooth and I'm doing exceptionally well, I can tell. 530 So, I'll just read through this. 531 The unique and specific circumstances around this 532 situation include the averaging of the front yard rule applies 533 to all residential lots, the vast majority of which face onto 534 residential streets. 610 Park Ave is impacted due to the 535 blanket application of this rule. 536 In general, Park Ave contains only R-1B lots in the 537 City which face mixed use/commercial type of uses. And the one 538 exception I can find is the property next to Mr. Tire on Fall 539 Ave which has a front yard facing the parking lot for Mr. Tire. 540 As such, the properties facing mixed-use zoning 541 generally have unique circumstances. Of course, they have 542 different feels than Fulton or Riley or Grove Streets with their 543 front yards facing more residential landscapes. 544 In addition, these is a subset of parcels on Park 545 which are right across the street from mixed use zoning, and 610 546 Park Ave is one of them. 547 There is already higher traffic on Park Ave and 548 increased traffic likely in the future with mixed-use zoning 549 across the street and the potential for additional 550 redevelopment, which I'll note, I support. 551 This particular lot, 610 Park Ave, is an interior lot. 552 With it being an interior lot, it is basically forced to face 553 Park. Kind of uniquely on some other streets that face Park and 554 a side street, they actually have the opportunity to change 555 their orientation, such as 200 North Virginia, which is on the 556 corner of Park and Virginia. That used to face Park Ave. When 557 they rebuilt that home, they actually constructed it to face 558 Virginia Ave. 559 So, my interior lot on Park Ave, I don't have the 560 opportunity to change the orientation. I'm basically forced to 561 have my front yard, my true front yard feel on Park. 562 This particular lot is the shallowest interior lot on 563 Park Ave. So it's definitely a unique set of circumstances with 564 the dimensions of the lot and orientations that I'm facing. 565 Also interesting is Chapter 7 of the City's 566 Comprehensive Plan designates Park Ave as a "Great Street, 567 Civic" and then as they start to define "Great Streets" in 568 Chapter 7, appendix B, page 37, the third bullet point notes 569 that the features of "Great Streets" include buildings being 570 "close to the street." 571 So, it's interesting, the house where it's currently 572 set is at like 30 or 31 feet. When you're applying the 573 averaging rule, you're actually forcing the house to be further 574 back from the street. And by allowing this 25 foot minimum 575 variance, you're actually helping the City come in line with 576 what its vision, its stated vision in the Comp Plan is, of what 577 a Great Street is and having buildings be closer to the street. 578 The City has also designated the block immediately 579 across from 610 Park Ave as a revitalization area and you guys 580 seem to be encouraging redevelopment, which I support. 581 And then providing for a waiver of the averaging rule 582 will allow the house to be set further forward on the lot 583 providing for a bigger back yard, a safer and more peaceful use 584 of the property in light of the traffic and dense mixed-use 585 zoning that's coming across the street. 586 I'd love your guys' guidance here, if that was 587 appropriate or what else I could be doing to further this 588 conversation. 589 MR. JONES: If you've done your presentation, sir, I 590 think we could open it up to the Board to ask questions. 591 I'd like to start off. You mentioned that the current 592 structure on the property is at a 31 foot setback currently? 593 MR. COLANGELO: Correct. Roughly, yes. 594 MR. JONES: Is there anything prohibiting you from 595 building within the current framework, starting at 31 and moving 596 back? 597 MR. COLANGELO: I believe at the depth of the house, 598 it would start encroaching into the back setback. 599 Also, there's numerous reasons why, I mean I think for 600 this -- I mean, I think for the long term safety and enjoyment 601 of the property and the unique circumstances, which are the 602 outline, the way that this lot is positioned, it does have a 603 unique set of circumstances, that the 25 foot front yard setback 604 seems applicable due to these unique circumstances. 605 MR. JONES: Could you sort of illuminate or speak a little 606 bit more to the shallowness of the lot. If we took your exact 607 plan, moved it to 31 feet, are you saying that the back of that 608 structure would now encroach upon the rear setback? 609 MR. COLANGELO: I'd have to -- hold on one second. 610 MR. BARTLETT: I guess the question to John is what is 611 the rear yard setback for this lot per Code, and so if you moved 612 it back 7 feet, the rear yard setback would be 23 feet, but 613 what's the allowable? 614 MR. BOYLE: The base is 30. Let me see if there's a 615 reduction. No, there wouldn't be a reduction, so it would be 30 616 feet. 617 MR. BARTLETT: I think, Roy, following up on your 618 question, I wanted to find out, before you designed this 619 structure, did you know what your allowable rear yard setback 620 would be per Code of 32.2 feet, or -- 621 MR. COLANGELO: I think I was -- I mean I had 622 researched the 25 foot front setback and, I mean, it's similar 623 to my neighbors as well. I was surprised when my builder 624 started to go into -- I'm not sure if one of the civil engineers 625 or somebody pointed this out to the builder but we've gone 626 through this entire build process and then he said, Oh, actually 627 there's an averaging rule that we have to look at and when he 628 measured the two adjacent houses, so at the 32.2 feet I believe 629 it is, when you add the 40, yeah, it encroaches on that back 630 yard. 631 So that's when it came up and when I started talking 632 to my neighbors about it they said, yeah, it was a surprise to 633 them as well. 634 MR. BOYLE: I should say on behalf of staff, this 635 project was typical in that it was many months under review and 636 during the submission process of this and discussion with staff 637 is when the City Attorney's finding came out. So they kind of 638 had staff's preference for Code application at the start be 639 interrupted by the City Attorney's take on the Code mid-process. 640 So that's the reason why the house was designed to a 641 different standard. 642 MR. MISLEH: John, do we have the measurements for the 643 neighboring houses? What are the setbacks for 608 and 612? 644 MR. BOYLE: I'll get those. 645 MR. BARTLETT: Mr. Misleh, that's a really good 646 question because I'm looking at the aerial of 608 and 612 and I 647 see 608 on the corner, on the corner of -- I think that's Lee. 648 And I've seen that house before and I understand that that 649 probably has a -- around, I don't know, a 30ish foot setback. I 650 can't tell. 651 But I'm trying to figure out how 612 is measured. Is 652 it measured to the front of that garage that faces Park Avenue 653 or is it measured based on the residential housing structure 654 that's attached to the garage at 612 because -- or 608, sorry. 655 608 has the garage that looks to be the same distance from Park 656 Avenue as the existing structure at 610. 657 MR. BOYLE: We have the plat for 608 and it would be 658 measured to the garage which was shown as 35.2. And there it is 659 through the miracle of Akida. 660 MR. BARTLETT: All right. So 608 is around 31, 610 is 661 around 31. 608 is around 32 something. So there is a 32.2? 662 MR. BOYLE: 608 to the side is 35.2. 663 That particular builder wanted the garage in front and 664 you can't have a garage in the front yard so he simply pushed 665 the house back far enough to get the garage out of the front 666 yard setback. 667 That's why it's garage in front. There's a few others 668 in town like that. That one is at 35.2. 669 Akida, what's the one on the other side? 670 MR. MISLEH: Am I correct, while you're looking for 671 that, Akida, that 612 used to be oriented towards Lee Street and 672 when they redeveloped it, they oriented the house towards Park? 673 MR. BOYLE: I think you're correct. We've had a 674 flurry of those recently where they've wanted to rotate. 675 MR. COLANGELO: Hey, John, if I could chime in on 608, 676 so talking about the uniqueness of my lot versus like say a 608, 677 I would have loved to have a lot like 608. And, Akida, I think 678 you had it up on the screen. I mean they have a luxurious 679 practically back yard, even compared to mine set at 25 feet. 680 I mean, that's a beautiful lot right there. I mean, 681 it looks like the house is built about halfway there. Gosh, 682 they have an 86 foot backyard. And I think we just did the math 683 there. My backyard we're talking about, you know, 23 feet, so 684 we're talking about a quarter of the depth of backyard there. 685 Interestingly when 608 was built, they had the luxury, 686 frankly, to push that back. That setback's at 35 feet. They 687 didn't even have to set it that far back. So in the process of 688 building their house, they just said, eh, go ahead, push it 689 further back. They actually have a pretty steep grade there. 690 Part of the reason that they have their house further 691 setback is so you can access that driveway. It would be a 692 pretty crazy grade there. 693 But, yeah, so that whole building of 608 is hurting me 694 as well here and I don't even have the benefit of that same back 695 yard. 696 MR. BOYLE: It gets to the conversation of whether 697 this Code section makes sense anymore, but at the risk of 698 complicating conversation, this is a very good example of what 699 you're looking at of why staff feels this Code section is a 700 problem right now. 701 The original averaging language was from a time in the 702 30s and 40s that specifically in a paragraph that mentioned 703 streets that were not built out. We still had unpaved streets 704 and houses were going up one by one in a haphazard manner and 705 that's where the averaging language came in, to kind of make a 706 uniform frontage along these streets as houses popped up. 707 Then there was the provision to drop the averaging 708 once a street got built out. When that Code changed, they 709 didn't take this averaging language out of this particular 710 section and I think that's important because the previous 711 section specifically referenced the position of the building. 712 Now all we have is the average of the yards. 713 Well, if you trip through a couple of the definitions, 714 the yard is 25, the yard is 25, the yard is 25. It doesn't 715 mention the position of the building. And this is a good 716 example. 608 pulled their building back far enough to get away 717 from a slope to allow a reasonable pitch in a driveway and get 718 into a two car garage. 719 So had he put his back at 100 feet off of Park, 720 according to the averaging rule, would have rendered the 721 applicant's property unbuildable and he would be in here tonight 722 for a variance because of where the neighbors placed their 723 houses. 724 Now, the resolution of that argument is for another 725 day. It needs a Code amendment and the City Attorney has felt 726 that it's in there and it does need a Code amendment but it's 727 there. It says average so we're going to average. 728 In speaking of the burden of this particular 729 applicant, application, you have this provision that sets this 730 front yard of the applicants' property entirely based on where 731 the neighbors placed their houses. 732 And if that neighbor comes in in the future and tears 733 his house down and moves it, it renders the applicants' property 734 nonconforming. And nonconforming houses are not to be expanded, 735 so he couldn't do an addition or a porch or something like that 736 based on what the neighbors do. 737 So staff very strongly feels that we're kind of in a 738 period of unclarity as to how to apply this Code. And the 739 burden tonight for the applicant obviously and as Mr. Calabrese 740 raised, is why do you need relief, in summation. And I think 741 staff is in the position of agreeing with the applicant that 742 it's difficult to apply a uniform standard when your setback is 743 X but this other guy's setback is something else. The setback 744 on the applicants' property is 33 and change but the setback on 745 the neighbor to the right might be 40 and the setback on the 746 corner is an entirely different number. 747 And I can tell you for trying to review building 748 permits for staff, that's a headache. And we hope to resolve 749 that through Code amendment. But we're here tonight for an 750 application on a variance for relief. 751 I would just draw attention to, we have these lots 752 that are very different in configuration and shape and square 753 footage and very different in placement of where the houses are 754 and would that not be worthy of consideration under the Board's 755 burden of reviewing and approving. 756 You could build to that setback, I'm sure, but does it 757 rise to a taking of property. The setback on one property is X 758 and the setback on another property is something else. To 759 staff, that seems very haphazard and inequitable, if that's a 760 word. 761 I like the 25, I like the 30. Very simple. But we're 762 dealing with this Code that was written at a time when many of 763 the lots in the City, they've been subdivided but they hadn't 764 been built on. So they're trying to deal with this placement of 765 structures as the town built out. 766 Well, the town is built out yet we're still averaging. 767 So I guess I'd ask the Board to consider is the very 768 fact the Code asks for an averaging of setbacks a hardship. 769 I'm speaking a little more than I usually do because 770 we're vested in where this goes from here and whatever you 771 decide tonight is going to be instructional on where we take 772 this. 773 Yes, this is the Code, yes, we're to average. Does 774 that very fact that we average on this property, and his setback 775 is different than anyone else in town, does that rise to the 776 burden of what the BZA sees? 777 I, as Zoning Administrator, would take what your 778 opinion is and wrap that up and include it in part of our 779 argument to have this Code amended. 780 Again, like I said, I'm speaking a little more than I 781 usually do but this is a pretty sensitive topic as far as how we 782 handle our many, many, many single family properties in town. 783 MR. MISLEH: John, if the neighbors were less than 25 784 feet, would it still be the average? 785 MR. BOYLE: No. The way it's worded, it's a minimum 786 of 25 and no more than 50. 787 MR. KIEN: Hey, John. This is Peter. Can I get 788 clarity on something really quick here. 789 So if we were to apply the averaging rule to this 790 particular plat, the way I'm looking at it, and push this 791 property back, we would be simply creating another variance 792 needed for the rear setback, is that correct? 793 MR. BOYLE: For the proposed house. 794 MR. KIEN: For the proposed house. Forward talking 795 and to stay within both of these, a complete redesign for the 796 applicant. 797 MR. BOYLE: That's correct. 798 It's not a matter for this Board, I think, but this 799 applicant did start the process with guidance from staff that 800 your front yard setback is 25 feet. Then in a separate question 801 that came to the City Attorney at a subdivision hearing at the 802 Planning Commission, the question of front yard averaging was 803 raised because subdivisions have to show their setbacks. The 804 City Attorney opined that we need to average. 805 So through no fault of his own, this applicant has 806 invested time and money and what have you and extensive talks 807 with staff believing there was a 25 foot setback. So that's why 808 this house has been designed -- I wouldn't characterize it as 809 him trying to fit something in. He's working with the setbacks 810 we gave him. The City Attorney in mid-discussion felt that it 811 should be applied differently. 812 His options then are, do I apply for a variance, which 813 we encourage. Do I get the Zoning Administrator to issue an 814 opinion and then either appeal or support it? And then does he 815 risk a third party appealing the averaging? 816 Believe it or not there's a group out there that 817 watches front yard averaging in Falls Church. They have 818 appealed from time to time. They feel that that's the way the 819 Code should be applied. 820 So to answer your question, this house was designed as 821 though the front yard setback was 25. You can see they actually 822 set it back at almost 26. And they're well within the rear 30. 823 So without the averaging this house fits fine. 824 Akida, do we have the slide showing where the front 825 yard setback would fall if it were averaged? 826 MS. ROUZI: Oh, yes. Hang on. 827 MR. BOYLE: It's in the applicant's presentation. 828 MS. ROUZI: Is that it, John? 829 MR. BOYLE: Yeah. 830 So that graphic shows essentially what the variance is 831 that's being requested. 832 MR. CALABRESE: So, John, a question. The other homes 833 that are in that neighborhood, they built according to the 834 averaging requirement, is that correct? They followed the 835 averaging requirement for those homes. 836 MR. BOYLE: I can't be sure because they were built so 837 long ago. 838 Well, the one with the garage, he pushed it back far 839 enough to avoid a pretty severe slope. Basically the 840 engineering of the driveway defined where it went. So he needed 841 to pull it well back and I don't think he was concerned at all 842 about the averaging. 843 I can tell you when that 608's plan came in, I 844 reviewed it as though it were a 25 foot setback and he didn't 845 want to set it at 25 because it was very steep from Park so he 846 pulled it back far enough where they didn't have to excavate, 847 and what have you, so it sits where it sits. 848 But that's actually a very good example of the impact 849 the averaging has on your neighbors. Had 608 pulled it back 850 another 50 feet, we'd be talking about a zero building envelope 851 on this property. And staff has a problem with setbacks being 852 determined by where your neighbor places the house. But again, 853 a discussion for another day. 854 MR. CALABRESE: So, I, from an editorial standpoint, 855 it does sound like this Rule or this requirement is outdated and 856 perhaps had an uneven application. But the City has known this 857 for what, 50 years, since we started having paved streets? 858 MR. BOYLE: Yes. 859 MR. CALABRESE: Why has this not been changed? Why 860 are we saying now in 2020 that it's all of a sudden something 861 that should be changed when, in fact, the City has made these 862 changes like 70 years ago? I'm not sure I understand why all of 863 a sudden now it's something that's been discovered. It's been 864 around for that long. 865 MR. BOYLE: I think the thing that's different now 866 than many years ago is the number of tear-downs that we have. 867 The houses that were built -- the housing stock in Falls Church, 868 I'd say 80 percent of it is built in the World War II era and 869 the 1950s. They were placed en masse at the minimum setback. 870 They were averaged but they were averaged because they were all 871 set at 25 feet. 872 The phenomenon that's happened now is the perfectly 873 good million dollar houses are being torn down and replaced. 874 We've never seen this before. So, the question is, where do you 875 set them? 876 As houses get rebuilt, it changes the setbacks from 877 neighbor to neighbor and I think that's what's causing the 878 issue. 879 MR. BARTLETT: John, can I ask you a follow-up 880 question to David's question here. 881 It seems like while the averaging rule was on the 882 books for a certain timeframe, it was not being applied by, 883 based on legal opinion, practice, etcetera. So it seems like 884 staff has been sharing that interpretation with the public while 885 it's actually inaccurate to say that the front yard setback in 886 this case was 25 when it really is -- they were all always 887 subject to the averaging rule. 888 So while you can read the Code and look at one section 889 it says it's 25 and then later on in the Code it says you should 890 actually average, the practice of the City has been that we're 891 not going to apply the averaging rule until this recent new 892 emphasis to do so; is that correct? 893 MR. BOYLE: Yes and no, of course. We did average, my 894 predecessor and me. And my predecessor takes it back into the 895 1980s. But we're averaging, according to the provisions of the 896 Code which references the yard. The yard, it gets to be some 897 very tedious Code language, but the yard is the basic 25 or 30 898 without exception. So the average of 25 and 25 is 25. So, yes, 899 we're applying the average. 900 What changed is some language from the 1930s that was 901 carried through to about I think the 1944 Zoning Code, had a 902 second definition about "yard shall be the location of the 903 building." And that definition fell out. And now all staff has 904 is yard which is defined as 25 or 30 feet. It does not 905 reference the building. 906 So for the last, going on 40 years, we've averaged the 907 yards, and me being a math major, it was very simple for me to 908 do 25 and 25 is 25. And so when folks come in and ask what 909 their setbacks are, that's what they've been instructed to do. 910 What's changed is this City Attorney feels that there 911 must be a reason it's in there, let's average the buildings as 912 well as the yards. And she's taken the position of, Let's 913 change the Code but obviously it's in there for a reason. 914 I obviously disagree with that because a yard is 915 defined very differently than building location, so here we are. 916 This is probably the first iteration of this 917 discussion in front of the Board over this what's a yard and 918 what's a building location. 919 But in response to your question, we did average but 920 it's a distinction without a difference. The yards were 25 feet 921 and without that section pointing to the actual building 922 location, it really had no meaning. So 25 or 30, full speed 923 ahead. And then in the midst of discussion for this project 924 came the City Attorney's opinion for a subdivision, not even for 925 a building application. 926 So that's how we got here and that's literally 40 927 years of Code application with a big left turn here in the last 928 six months. 929 MR. CALABRESE: I mean, this Board, we're not in the 930 business of interpreting the meaning of the Code. Our business 931 is to determine the strict application of it and whether the 932 strict application creates an undue burden. 933 I'm having a hard time. It sounds like the City 934 Attorney thinks that we should interpret the law, the Code 935 strictly, that we should average. You're saying that you think 936 she's wrong. But our job is not to interpret. We don't have 937 that ability to do that. 938 I don't think that's -- and if we were to render a 939 decision that's based on what we think is our own interpretation 940 of the law or, worse, that we think the law is wrong, so we're 941 going to make an equitable decision that we're going to rule in 942 a different way. I don't know that that's something we can do. 943 It would certainly be subject to an appeal. 944 MR. BOYLE: I think you're right in raising that 945 position. It's not the Board's position to make Code 946 amendments. But I think there's enough to work with if you 947 embrace the averaging of, let's say for argument's sake, the 948 actual buildings. Does that pose a hardship on this particular 949 property? And leave the discussion of whether the Code has a 950 typo in it or not for another day. That's not this Board's 951 purview. 952 You can review this application as the City Attorney's 953 instructed and that while I don't think the Code -- as Zoning 954 Administrator, I don't think the Code references the buildings. 955 She's saying it must, otherwise why would it be there. 956 So the averaging rule in this case is looking at the 957 position of the buildings on either side. So for the purpose of 958 this application, does holding this property owner to the 959 average of the buildings on either side pose a hardship in 960 addition to the other items that he's raised. 961 So you can have that conversation without worrying 962 about rewriting the Code. 963 MR. CALABRESE: That makes sense. 964 MR. COLANGELO: John -- sorry, guys. Dave, do you 965 mind if I jump in for a second? 966 MR. CALABRESE: Sure. 967 MR. COLANGELO: Real quick. So and I think I've 968 consulted a couple of lawyer friends and they said, Andrew, you 969 have to show a unique hardship specific to this specific lot. 970 And hopefully I've done that being that it's facing Park, a busy 971 street, a Great Street. It's a unique circumstances in that 972 it's right across from a mixed use potential dense development. 973 It is the shallowest interior lot on Park. 974 So I think I'm showing the unique circumstances of 975 this lot which is a key component to you guys providing the 976 variance here. 977 Second point, John, which I was just going to kick 978 over to you. And you guys are saying, okay, we can't -- I'm not 979 saying you're saying this, but you could say is it up to us to 980 interpret how the Code is written. 981 And, John, help me here, but I believe the way the 982 Code is written, is that let's say somebody wanted to create a 983 sunroom on the back of their house. The way the Code is 984 written, the way I read it, you can't add a sunroom on the back 985 of your house if the front of your house is not at a average. 986 If your front yard setback is nonconforming, you can't add a 987 room or you can't make any type of adjustment to your house.  988 John, am I correct in that? 989 MR. BOYLE: Yes. You're referring to your house being 990 nonconforming because it's not the average of the neighbors on 991 either side. 992 Yeah, your house was rendered nonconforming when 608 993 was built. 994 MR. COLANGELO: I'm sorry, I'm talking about any 995 houses going forward. If any other houses, the way the Code's 996 written, if somebody is trying to add a sunroom to the back of 997 their house and the front of their house is nonconforming, then 998 they can't add a sunroom to it. I think it's even any additions 999 that current residents are trying if it's a nonconforming house. 1000 Even going forward beyond my house, I'm talking about 1001 a blanket application of this rule. The way it's being read is 1002 that no changes can be made to houses or additions -- additions 1003 can be made to houses if your front yard setback is 1004 nonconforming. 1005 MR. BOYLE: That's correct. If it's nonconforming in 1006 any way, it's not to be expanded. 1007 And that's part of our concern with the interpretation 1008 of this Code Section. 1009 If the Board -- I don't think it would rise to the 1010 level of rewriting the Code which we agree is not your authority 1011 or your burden here tonight, but if the Board would like, if you 1012 wanted to jump into the definitions and see what the issue is 1013 with this averaging, you'll see that the setback is defined as 1014 the yard and the yard is 25 feet. 1015 I guess you'd be colliding with the City Attorney's 1016 opinion that you need to consider the building location. 1017 Nowhere in the Code does it say reference the building 1018 location. But that's staff's position and the City Attorney 1019 disagrees. 1020 I don't want to make this a argument between staff and 1021 the City Attorney. She has a different burden than we do and we 1022 play well together. 1023 I think the Board could look at what is a setback and 1024 how is that defined. I think after you read a couple of the 1025 definitions you would see that the setback here is 25 feet. So 1026 this applicant is asking for a variance to build to what the 1027 Code requires. 1028 Perhaps that's a leap too far and Mr. Calabrese has 1029 already raised a concern about differing from the City Attorney 1030 but it helps to view that in the context of what's being asked 1031 here. They're not pulling the house further than what I think a 1032 reasonable group of people would agree is the setback. They're 1033 simply asking to build it to what the Code allows. 1034 The averaging position, that would be an interesting 1035 debate: Does this Board have the authority to look and say, you 1036 know what? The average of 25 and 25 is 25. It may take another 1037 evening to have that discussion but since staff has been at the 1038 center of this Code amendment, that's been our position. 1039 The Code does not reference building location. We're 1040 here tonight because the setback has been applied to this 1041 property as the average of the building locations. And is it 1042 within the purview of this Board to say, you know what, the 1043 front setback is actually the yard and the yard is 25 feet. 1044 MR. BARTLETT: I don't understand that confusion or 1045 concern about the front yard setback and the yard and the 1046 building location. You have three houses that are facing Park 1047 Avenue. One is 31 feet, one is 32 feet, and so the average of 1048 this required front yard is the average of those other two front 1049 yards. 1050 What's the concern about your terminology associated 1051 with building location, John? 1052 MR. BOYLE: Because all we have now in the Code is 1053 “yard." And if you go through the definitions, the yard is 1054 defined in this zoning district as 25 feet. The averaging 1055 position appears in a separate section but it references -- 1056 you'd have to trip through the Code. 1057 It's complicated because the front yard setbacks are 1058 established by looking at three different Code sections in this 1059 particular circumstance. One of those Code sections fell out 1060 and the one that fell out years ago said you will 1061 reference the actual physical location of the building. 1062 So we're left with what we have in print and it simply 1063 says what's the average of the yards. 1064 MR. BARTLETT: But was that missing Code provision due 1065 to this circumstance? 1066 MR. BOYLE: Then you would reference the position of 1067 the buildings. See, I look at it this way. 1068 MR. BARTLETT: How would that apply to this 1069 circumstance? What's different about it? 1070 MR. BOYLE: Then you would get the red line. See, I 1071 look at it this way. If I say you must reference the position 1072 of the buildings, if me as Zoning Administrator said, your 1073 setback is based on the position of the buildings on either 1074 side, and an attorney came in and said, what's that based on, I 1075 wouldn't have anything in the Code to point that to other than 1076 average the yards. And then they would go through the step by 1077 step process of well, what is a yard and the only answer in our 1078 Code is 25 feet. 1079 Forty years ago, fifty years ago, averaging meant the 1080 position of the building because of a paragraph that's no longer 1081 in the Code. 1082 So my position and my predecessor's position has been 1083 the building location has no longer been referenced, we're just 1084 going to do 25 and 30 as each zoning district requires. 1085 That's worked well until very recently. The City 1086 Attorney has taken the position that there must be a reason that 1087 the averaging term is in there so let's average. And that's a 1088 good legal position to take. It must be in there for a reason. 1089 They didn't put that word in there just for giggles. So she 1090 said until we get a Code amendment we're going to average and 1091 perhaps that means including the buildings. 1092 I would like a little more clarity than that, but 1093 that's why we're here. 1094 MR. CALABRESE: So, Mr. Colangelo, the first time you 1095 went in to the City and you were told the setback was 32.2 feet, 1096 would you have designed the house with that setback? 1097 MR. COLANGELO: If I was told 32.2? I mean, I 1098 probably would have gone for a variance in that situation and 1099 just done it at an earlier date. 1100 MR. CALABRESE: Okay, okay, okay. 1101 MR. COLANGELO: I don't know, I mean I'm supposed to 1102 be showing a unique situation here I think for this particular 1103 lot. So I get it, guys, with the Code and everything, and like 1104 is it exactly to Code and I guess, John, my point what I'm 1105 saying, like the way the Code reads, and I just think this is 1106 pretty extreme that the lawyer has, and I'm just trying to drive 1107 it home, the way the lawyer, City Counsel, City Attorney, I'm 1108 sorry I'm messing up the exactly terminology there, has stated 1109 that basically you can't make any addition to a house if it's 1110 nonconforming and that's just the way that the Code reads. 1111 So I think my lot has unique circumstances in the 1112 shape. I don't have the luxury of the depth of 608 but I just 1113 also think, and I think where the amendment is going here which 1114 I unfortunately don't have a ton of time to wait for because I 1115 know that takes time and COVID's hit and everything, is a 1116 recommendation of the waiving of the averaging. But the way 1117 that the Code reads, if somebody wants to make an addition to 1118 their house, a sunroom on the back, you can't do it to 1119 nonconforming houses. 1120 MR. CALABRESE: No, what I was getting at, and I think 1121 you answered my question, we're not going to grant a variance 1122 because the City gave you wrong information, let's put it that 1123 way. If the City said then this was it and it turns out they 1124 were wrong, that is not a valid justification. Unfortunately 1125 that's just an error. 1126 But so what I was asking you and I think you answered 1127 it, if you were given the "correct" so to speak, information, 1128 you would have still asked for the variance. What you were 1129 saying, I believe, is at the 32.2, it would have been a burden. 1130 What I'm trying to get at, the burden isn't that you 1131 already designed the house and now you have to go back and redo 1132 it. The burden is that at the 32.2, you're saying it would be a 1133 burden to design a house with that setback. 1134 MR. COLANGELO: On this particular lot, yeah. On this 1135 particular lot, for sure. 1136 MR. MISLEH: I think it's hard for you to average 1137 between two unequal properties. The 608, the depth of 608 1138 renders that owner a lot more capability like John said, you 1139 know, you could have placed it even 50 feet back which would 1140 have even further unduly impacted the owner of 610 Park. 1141 So I think that when you use the term average and 1142 you're averaging between two so unequal properties, I think 1143 that's a burden in and of itself. 1144 MR. CALABRESE: Is the person, the one neighbor that 1145 sent the negative variance, I'm reading their letter, where are 1146 they located in reference to the house, this property? 1147 MR. BOYLE: Let me check. They were around the corner 1148 I think. Give me a minute. Go ahead and I'll find it. 1149 MR. CALABRESE: They said they're on North Lee. 1150 MR. COLANGELO: They're the third property in on Lee 1151 from Park. 1152 MR. CALABRESE: Okay. So my basic question is how are 1153 they -- your direct neighbors, I think your direct neighbors 1154 said they were supporting this application, is that correct? 1155 MR. COLANGELO: Yes. 1156 MR. CALABRESE: So this person would be nonadjacent 1157 and perhaps not even within sight. 1158 MR. COLANGELO: It doesn't seem like it. I mean, 1159 their main reference here, and I'm just going, sorry, guys, 1160 layman's terminology here again, just looking at this, they seem 1161 to feel that the presence of the house is just too close to the 1162 street, claustrophobic aesthetic environment on the block, which 1163 is one of their main points, I feel like. 1164 I mean, the challenge with this general argument, I 1165 feel, is if you look at the houses on -- I think the address is 1166 -- actually if you look at the houses on that email that I sent 1167 to Akida, all three of those houses have quote, unquote, front 1168 yards on Park and are less than basically 20 feet from the curb. 1169 So, yeah, that whole aesthetic feel of Park, I'm just not buying 1170 it. 1171 But their other main point, it blocks sight lines from 1172 neighborhood homes and -- 1173 MR. CALABRESE: If they're not adjacent neighbors, I 1174 was just getting at that, if they're not adjacent, I think their 1175 objection takes on a different flavor or different impact. 1176 MR. MISLEH: I think, David, that the three 1177 immediately adjoining properties wrote letters in favor of, is 1178 that right, Andrew? 1179 MR. COLANGELO: I'm aware of the two adjacent 1180 neighbors. I'm not aware of who the third letter in support was 1181 from. 1182 MR. CALABRESE: Okay. Thank you. 1183 MR. BARTLETT: John and Akida, I have a zoning 1184 question for you. 1185 If you look at 201 Pennsylvania Avenue, which is on 1186 the corner of Park and Pennsylvania Avenue, when 608 was built, 1187 would the averaging rule have been the average yard on Park 1188 between 610 and 201 Pennsylvania Avenue, since that 201 1189 Pennsylvania Avenue, it's a corner lot and has two front yards? 1190 Would the average have been the 31 feet from current 610 and 1191 what I'm looking at is like 15 feet for 201 Pennsylvania Avenue, 1192 therefore their averaged would have been less than 25 and so 1193 therefore, they would have automatically been limited to 25 1194 feet? 1195 MR. BOYLE: Well, first it looks like the corner house 1196 on Pennsylvania was built in 1927, so not historic but 1197 definitely predates both the City and Fairfax County's Zoning 1198 Codes. 1199 But trying to fit it into the Code today, I'd say it 1200 follows the pattern of averaging with its neighbor on 1201 Pennsylvania. 1202 MR. BARTLETT: No, I'm talking about building 608 Park 1203 Avenue, John. If Park Avenue, 608 Park Avenue had to apply the 1204 averaging rule, would it have been allowed to build up to 25 1205 feet as a front yard setback? 1206 MR. BOYLE: I see. Yeah, you start with the minimum 1207 of 25 and then the averaging paragraph says, however it will be 1208 the average of the buildings on either side not more than 50. 1209 So with that one on the corner of Pennsylvania being very close, 1210 for example, say if 608 had come in and said, hey, we want to 1211 build a 10 feet or whatever Pennsylvania is, we would have said 1212 no, it's 25. 1213 So, yeah, they would have started at 25 and the 1214 averaging rule doesn't allow us to push them any further back 1215 than 50. 1216 MR. BARTLETT: But 608 Park Avenue could have built to 1217 25 feet? 1218 MR. BOYLE: Yes. 1219 MR. BARTLETT: Thank you. 1220 MR. CALABRESE: I don't have any further questions. 1221 MR. COLANGELO: I appreciate everybody taking the 1222 time. 1223 MR. CALABRESE: Thank you. 1224 MR. COLANGELO: Sorry, can you guys brief me on the 1225 process or do I sign off at this point? 1226 MR. BOYLE: Mr. Chair, I think we close it to comments 1227 or ask if there's any comments from the public. Do we still 1228 have a member of the public in the queue here? 1229 If not, then I think we close it to Board discussion. 1230 MR. FOGLE: Yes, Hi. Sorry, this is Chris Fogle. I'm 1231 just rejoining. I was out for a while. 1232 I'm the neighbor at 201 Pennsylvania, two doors down. 1233 And I just wanted to voice my support. I don't have any 1234 concerns with the application. Thank you. 1235 MR. COLANGELO: Thank you, Peter. 1236 MR. CALABRESE: Are we in discussion phase now? 1237 MR. BARTLETT: I think so, David. 1238 MR. CALABRESE: So I guess I first was concerned about 1239 a lot of the legal issues, which it sounds like we have a 1240 problem with the Code. 1241 As I noted, I wouldn't feel comfortable us making 1242 interpretation or otherwise our own judgment on whether the Code 1243 is correct or not and why it was written the way it was, we have 1244 no idea. 1245 I do take the City's attorney word very seriously. 1246 They would be the experts, in my mind, on how it should be 1247 interpreted, but also you, John. You know it very well. 1248 But I guess in asking the petitioner the question that 1249 whether he would have requested a variance if originally he was 1250 told it was the 31 feet, and the burden that he's described, I 1251 would be satisfied that that would meet the burden, the undue 1252 burden, if he had to meet the 32 feet, and putting aside all 1253 this business with whether it was averaged or how it was 1254 averaged. 1255 So, anyway, I feel more comfortable with that, with 1256 there being a burden it would appear. 1257 MR. JONES: Thank you, David. 1258 MR. KIEN: Yeah, Keith, I think you asked the last 1259 question that kind of seals it as far as the burden is concerned 1260 for me, in regards to if 608 could have built to 25 feet, then I 1261 don't see why someone else shouldn't be given the same 1262 consideration. It shouldn't be first come, first serve. 1263 MR. BARTLETT: Yeah, I remember from my property law 1264 classes, I don't remember conditional zoning applying to one 1265 neighbor who's there before the other neighbor and then because 1266 of a choice that one makes, you can't do the other. That, for 1267 me, I feel is what should allow us to incorporate some of these 1268 concerns into his application for the variance. It just makes 1269 me uncomfortable. 1270 MR. MISLEH: I agree with the points you've both made. 1271 Thank you. 1272 MR. JONES: Thank you, all. 1273 It sounds like we're done with the comment portion. 1274 Would any of my colleagues like to make a motion? 1275 MR. CALABRESE: I can make a motion to approve the 1276 variance -- I don't have the variance number here. But approve 1277 the variance -- if someone can tell me the variance number -- 1278 but I would make a motion to approve it. 1279 MR. MISLEH: It's V1615-20. 1280 MR. CALABRESE: Thank you. 1281 MR. KIEN: I second that motion. 1282 MR. JONES: For purposes of the record, we have a 1283 motion to approve and a second to approve the variance 1284 application V1615-20 by Lauren and Andrew Colangelo, applicant 1285 and owner, for a variance to Section 48-1102(c) to allow a front 1286 yard setback of 25 feet instead of 32.2 feet, for the purpose of 1287 constructing a new single family dwelling on premises known as 1288 610 Park Avenue, RPC #51-129-035 of the Falls Church Real 1289 Property Records, zoned R-1B, Medium Density Residential. 1290 Akida, could we have a roll call, please. 1291 RECORDING SECRETARY: Mr. Jones. 1292 MR. JONES: Yes. 1293 RECORDING SECRETARY: Mr. Calabrese. 1294 MR. CALABRESE: Yes. 1295 RECORDING SECRETARY: Mr. Kien. 1296 MR. KIEN: Yes. 1297 RECORDING SECRETARY: Mr. Misleh. 1298 MR. MISLEH: Yes. 1299 RECORDING SECRETARY: Mr. Bartlett. 1300 MR. BARTLETT: Yes. 1301 RECORDING SECRETARY: Thank you. 1302 MR. JONES: Your application is approved, Mr. 1303 Colangelo. Congratulations, and good luck with your project. 1304 MR. COLANGELO: Thank you guys so much. Appreciate 1305 the time. 1306 1307 6. APPROVAL OF MINUTES 1308 a. Approval of the March 12, 2020, Meeting Minutes 1309 1310 MR. JONES: The next item on the Agenda is the 1311 Approval of the Minutes from the March 12, 2020, meeting 1312 minutes. 1313 If we can just take a few minutes to read through 1314 those items to make sure for their accuracy. 1315 (Minutes reviewed.) 1316 MR. MISLEH: I move to approve the meeting minutes of 1317 the Board of Zoning appeals from March 12, 2020. 1318 MR. JONES: Is there a second? 1319 MR. BARTLETT: I'll second that motion. 1320 MR. JONES: Roll call please. 1321 RECORDING SECRETARY: Mr. Jones. 1322 MR. JONES: Yes. 1323 RECORDING SECRETARY: Mr. Calabrese. 1324 MR. CALABRESE: Yes. 1325 RECORDING SECRETARY: Mr. Kien. 1326 MR. KIEN: Yes. 1327 RECORDING SECRETARY: Mr. Misleh. 1328 MR. MISLEH: Yes. 1329 RECORDING SECRETARY: Mr. Bartlett. 1330 MR. BARTLETT: Yes. 1331 RECORDING SECRETARY: Thank you. 1332 1333 7. OTHER BUSINESS 1334 MR. JONES: Mr. Boyle and Akida, do we have any Other 1335 Business or applications that are coming down the pipeline? 1336 MR. BOYLE: I think we may have one related to the 1337 historic property on Lincoln. They have to get teed up with the 1338 HARB first who will make a recommendation to this Board but I 1339 don't think it's been scheduled for the BZA yet so we're going 1340 to have to follow up with the Board and let you know if that's 1341 confirmed for next month or not. 1342 MR. JONES: Very good, sir. 1343 And I don't believe there's any Other Business to 1344 address. 1345 1346 8. ADJOURNMENT 1347 MR. JONES: So with that, is there a motion to 1348 adjourn? 1349 MR. CALABRESE: I'll make the motion. 1350 MR. JONES: Do we have a second? 1351 MR. KIEN: I second. 1352 MR. JONES: Roll call. 1353 RECORDING SECRETARY: Mr. Bartlett. 1354 MR. BARTLETT: Yes. 1355 RECORDING SECRETARY: Mr. Misleh. 1356 MR. MISLEH: Yes. 1357 RECORDING SECRETARY: Mr. Kien. 1358 MR. KIEN: Yes. 1359 RECORDING SECRETARY: Mr. Calabrese. 1360 MR. CALABRESE: Yes. 1361 RECORDING SECRETARY: Mr. Jones. 1362 MR. JONES: Yes. 1363 RECORDING SECRETARY: Thank you. 1364 MR. JONES: Good night, everyone. 1365 MR. BOYLE: Thank you.