Board of Zoning Appeals

Town of Vienna 127 Center Street South Vienna, Virginia 22180 p: 703.255.6341 TTY 7111 Meeting Minutes Board of Zoning Appeals Wednesday, May 15, 2019 8:00 PM COUNCIL CHAMBERS-VIENNA TOWN HALL 1. Roll Call: The Board of Zoning Appeals (BZA) held one advertised public hearing in the Council Room of the Vienna Town Hall, located at 127 Center Street, South, Vienna, Virginia, on May 15, 2019, beginning at 8:00 PM with Robert Dowler presiding as Chair. The following members were present: Jonathan Rak, Robert Petersen, George Creed, Gregory Haight, and Michael Gadell. Bill Daly was absent. Also attending and representing staff were Frank Simeck, CZA, Senior Zoning Inspector, Kelly O’Brien, Principal Planner, and Sharmaine Abaied, Board Clerk. Mr. Dowler called the meeting to order and asked the Board Clerk to call roll. All members were present with the exception of Mr. Bill Daly Mr. Rak stated that he is a Partner with McGuire Woods and McGuire Woods has Sunrise as a client. Although he does not have any involvement with that client Mr. Rak asked to recuse himself from participation with that application to avoid appearance of a conflict of interest. Mr. Dowler gave an opening statement reviewing the purview of the Board of Zoning Appeals 2. Public Hearings: 124 Melody Ln SW - Appeal to a Zoning Violation Request for an appeal of a zoning violation stating the subject property is not in compliance with Town Code §18-218 as it relates to building permit requirements, for the property located at 124 Melody Lane, SW, in the RS-10, single-family detached residential zone. Application filed by Nicholas Cumings agent of Walsh Colucci Lubeley & Walsh PC. Mr. Dowler stated the Virginia State Code (§15.2-2309.1) has special procedures for the first agenda item. The code states that “…the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness…” Mr. Dowler asked Mr. Simeck (Certified Zoning Administrator, CZA) to begin. Mr. Simeck was sworn in to give his testimony regarding 124 Melody Lane SW. Mr. Simeck began by stating the zoning enforcement officer had noticed a deck being converted to a screened in porch in December 2017. The zoning enforcement officer, ZEO, researched through building permits and there had been no building permit application for the work being done. Upon initial contact, the owner stated he had a contractor that was doing the work. The owner stated he would double check that a permit Town of Vienna Page 1 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 had been issued. The homeowner discovered the contractor did not apply for a permit. Mr. Hathaway, homeowner, had met with staff and stated the contractor had walked away from the project and would not complete the permit or work. The town had been working with Mr. Hathaway to bring the property back into compliance, but there was no fulfillment of the building requirements by Mr. Hathaway. In March of 2018 Mr. Hathaway contacted Walsh Colucci Lubely & Walsh PC. There had been some communication between his attorney, Mr. Nicholas Cumings, Town of Vienna Planning and Zoning staff, and the Town Attorney, Mr. Steve Briglia, with no completion of permits. The purpose of the zoning violation was to get Mr. Hathaway to comply with the Towns Code of lot coverage and rear setback. The home is currently at 26.6% lot coverage and the converted deck into a porch encroaches into the setback. Mr. Dowler asked Mr. Simeck if the letter from March 25, 2019 had the updated revised notice of the zoning violation. Mr. Simeck said that was correct. Mr. Dowler asked if 1 through 4 stated what the violations were and if that was the basis for the determination. Mr. Simeck said yes and that there was no confusion as to the violation. The issue has always been lot coverage and setback once the deck was converted into a screened in porch. Mr. Simeck stated that decks are allowed to encroach 10 feet into the setback, 25 feet from the rear property line, but once converted into a structure with a roof it needs to meet the 35 foot setback. The 2014 house location survey shows, the new, rear porch at 31.4 feet from the rear property line and it needs to be 35 feet. When the house was originally built the owners were at 24.9% lot coverage. The conversion of the deck into a screened in porch made the inspector aware that the home would be over lot coverage. The owners had tried to modify their driveway as well and the Town staff had asked the owners to comply with the application of a driveway permit as well as a building permit. Mr. Simeck stated that it seemed as though the owner cannot seem to bring things across the finish line and was either unwilling or unable to fulfill the town’s permitting requirements. Mr. Dowler asked what the finish line would be. Mr. Simeck stated the finish line would be an approved building permit that meets lot coverage and setback. Mr. Creed inquired about the proposed improvements showing 27.25% lot coverage versus the 26.6% lot coverage in Mr. Simeck’s testimony. Mr. Simeck stated an updated survey was received around 4:15 pm the night of the meeting with a different lot coverage amount. He then stated the applicant should be able to speak on the differences in the proposed lot coverage amounts. Mr. Dowler inquired about a timeline given to the Board. Mr. Simeck stated the timeline was prepared by the ZEO, Clarence Goodson, giving the chronological timeline of interactions or communications regarding 124 Melody Ln SW. Mr. Creed asked for the timeline to be entered into the record. Mr. Cumings stated he had no issue with that. Mr. Gadell asked about the April 24th communication with Mr. Briglia, Town Attorney that states the violation was not appealable. Mr. Gadell asked if the violation was appealable. Mr. Simeck stated he did not believe it was appealable because the zoning ordinance was knowingly violated and it cannot be a self-inflicted hardship due to not applying for a permit. Mr. Cumings stated it had been difficult for his client due to the contractor not doing as directed when starting the project, and then he fled the area leaving Mr. Hathaway an enormously expensive problem to fix. The difficult situation was the root of why it was taking so long. Mr. Cumings stated they were asking for a deferral to June and would like to keep the issue with the Board before moving on to further enforcement as the Town of Vienna Page 2 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 homeowners were trying to get into compliance. Mr. Cumings said from the homeowners perspective they had taken steps to address the situation by resurveying the property that added area, reducing lot coverage a bit. They also consulted with the town before reducing the driveway, but did not apply for a permit. The owner’s engineer stated that with the amount of land disturbance, a permit was not required, but the proposed alterations of the driveway had been shown to the Town’s Zoning Administrator. After reducing the driveway, the owner began the steps to reduce the porch. Mr. Cumings stated the solution was to take an enclosed area that counts towards lot coverage and setbacks, reduce the amount of enclosed area and convert it to a deck. The deck would not count towards lot coverage or setbacks curing the entire problem. The importance of the enclosed area was Mr. Hathaway’s wife’s severe allergy to insects. Mr. Cumings stated there were some communication issues with the town regarding building permits. The contractor was in charge of the permitting and now Mr. Cumings has taken control of that situation to fix it given the advance stages they are in. They did get an updated survey in to staff in the afternoon demonstrating the existing conditions with the reduced driveway and increased site area. The new survey puts current lot coverage at 26.6% lot coverage. It also demonstrated that with the reduction of the enclosed porch they would be compliant. A plat, with a shaded area showing how much of the enclosed porch would remain versus the deck, had been provided. Mr. Cumings stated he thought they would need to produce another plat that shows what the lot coverage would be after the reduction of the enclosed porch. The updated survey was what the applicant needed, to get the required driveway permit after the fact. Mr. Cumings stated the town made its point with the violation to prompt quick action by the homeowner. He asked that the Board defer the application to June so the applicant would be able to state that they had zoning approval for the project. Mr. Cumings stated he did not believe the work would be done in a month’s time. Mr. Dowler asked if he was asking for a postponement and Mr. Cumings said yes. Mr. Dowler then asked what the town’s position was regarding the deferral. Mr. Simeck stated the town has already been overly patient as it had been over a year since the homeowner had hired legal counsel to remedy this and there had been little movement, except for several phone calls, back and forth emails, and meetings at town hall. The updated survey had only been received at 4:15, but could have been completed in a month after legal counsel was hired in 2018. Mr. Dowler asked if Mr. Simeck was opposed to the deferral. Mr. Simeck stated that unless there is a strict deadline he did not believe the homeowners would come into compliance. Mr. Dowler then spoke to the Board stating he believed they would need to vote on whether or not they would defer the application to the following month. Mr. Rak asked Mr. Cumings if the application was an appeal to the zoning administrator’s determination that there was a violation. Nowhere in the materials presented or testimony given was there any assertion that the decision was incorrect. It sounded as though the appeal was filed to gain suspension of enforcement and delay the compliance. Mr. Rak asked if there was any argument that the zoning administrator’s determination was incorrect. Mr. Cumings stated the appeal was filed to stay enforcement, which is standard procedure to resolve things, and the resolution in this situation was a construction project. Mr. Cumings stated he appealed with caution due to not being aware if it was a true notice of violation due to lack of required language for a true violation. Mr. Dowler asked if the notice was the March letter, Mr. Cumings said yes. Mr. Dowler then asked if, per the code, a person appears and participates then they waive the notice requirements. Mr. Cumings stated it’s helpful to have the language in the notice to know, but appearance at the hearing does waive any complaint about notice. He then stated their appearance there was to get on a strict schedule of getting into compliance. Town of Vienna Page 3 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 Mr. Petersen said that the written record shows correspondence with the town from at least March 15, 2018. He then asked Mr. Cumings when he was retained by the homeowner. Mr. Cumings said it wasn’t long before that time. He continued saying there was a notice then, 2018, to which they had filed an appeal and the town had withdrawn the notice. Mr. Cumings stated he believed he was retained about 20 days prior to that time. Mr. Dowler asked for a motion to grant a continuance and if it passed they would come back, but if it failed the Board would move on to rule on the violations. Mr. Rak asked Mr. Simeck if the Board denied the appeal what would be the next steps and consequences. Mr. Simeck stated the town would move towards adjunctive relief through Fairfax County filing civil and criminal summonses to appear in court. Mr. Rak asked what the typical period of time would be for the next steps. Mr. Simeck stated it would be after the meeting if the Board decided against the deferral. Mr. Rak asked if they would need to schedule a hearing. Mr. Simeck stated they would file paperwork at the courthouse for the applicant to come to a court date. Mr. Rak asked if there was a June 6th court date. Mr. Simeck stated there was a parallel track with Fairfax County code enforcement as they had been notified of the unpermitted work and are seeking legal ramifications as well. Mr. Dowler asked for a motion. Mr. Haight made a motion to grant a continuance as they had done work to correct the situation that was brought about by the person working on the project. A reasonable time period could be agreed upon to have everything done. Mr. Dowler asked for the time period. Mr. Gadell asked that if something wasn’t done within 30 days would it come back before the Board, Mr. Dowler stated yes. Mr. Gadell stated he didn’t want it to drag on three or four more months. If a 30 day grace period is allowed what is the next course of action. Mr. Simeck stated he believed the 30 day grace period would be for the applicant to come into compliance with a permit that meets town code. If that can’t be demonstrated and the deferral is granted then at that time the town would move forward with adjunctive relief. Mr. Dowler asked how far away the home owner was from coming into compliance. Mr. Simeck stated he had the lot coverage and setback issued that had to be addressed. Mr. Creed stated there needed to be a second to the motion to have discussion. Mr. Dowler asked if there was a second to the motion. Mr. Creed seconded the motion Mr. Gadell stated he would agree to it with the 30 day time limit, but would not want to go beyond that. As stated by Counsel there were plans underway to remove a portion returning it to deck and bringing it to compliance. Mr. Cumings stated that was correct and that they knew what they needed to do to bring the property into compliance. They needed to get an approval from the town and get a builder to do the work. Mr. Gadell asked how long the process could take. Mr. Simeck stated it could be done the next day if the applicants were serious about getting compliant. Something as simple as hiring a competent contractor had taken over a year. Mr. Dowler asked if there was an amendment to rectify the situation in 30 days. Town of Vienna Page 4 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 Mr. Creed stated that 30 days may not be the right number Mr. Rak stated that the intention may be to have the case continued to the next meeting which may be 30 days and that is when the Board would be in position to vote on the disposition of the appeal. Mr. Rak suggested an amendment to the motion for a deferral of action until the next meeting in June. Mr. Creed seconded the amendment and stated his concern with the timing. If it was addressed next month and it went before the county, again he wanted the Board to make sure they were able to adjudicate it no later than July. Mr. Gadell commented on the June 6 hearing, the applicant would have with Fairfax County and if it will have precedent over what the Board does. Mr. Simeck stated it was parallel as they would have their own enforcement. Mr. Cumings said June 6th was the first date for a misdemeanor in General District Court for lack of a building permit. They had talked to the Fairfax County inspector and the first date would be continued, as it is standard procedure. Mr. Petersen stated he was sympathetic to the home owner and the town. Seventeen months had gone by since the town engaged the home owner with consultations. The home owner had also been represented by legal counsel for fourteen months without adequate action taken to avert the next step proposed by the town. Given all of that information Mr. Petersen stated he could not support the motion. Mr. Rak stated he agreed with Mr. Petersen, but that there would be an expense to the town to pursue it through the courts. If it can be resolved in a month it may be more prudent to defer. Mr. Rak stated he would not support anything beyond the next meeting. Mr. Simeck stated there would be no cost incurred by the town and the attorney would represent this as he is on retainer. Mr. Dowler asked for the vote. Motion: Haight Second: Creed Passed: 5-1 Nay: Petersen Absent: Daly Mr. Dowler stated it would be deferred until the next meeting in June. 100 to 112 Maple Avenue East - Sunrise Assisted Living - Conditional Use Permit for Assisted Living, as part of a proposed rezoning from the C-2 General Commercial Zone and C-1A Special Commercial Zone to MAC Maple Avenue Commercial Zone. Application filed by Sara Mariska of Womble Bond Dickinson on behalf of Sunrise Development Inc. Request for a conditional use permit for assisted living as part of a rezoning to the Maple Avenue Commercial (MAC) zoning district. Applicant proposes a mixed-use building with retail space on the ground floor and senior assisted living facility above. Ms. Kelly O’Brien stated she had some quick slides to present regarding the Conditional Use Permit. Mr. Dowler asked for Ms. O’Brien’s relationship to the applicant. Ms. O’Brien stated she was the staff planner for the town that had been working on the Town of Vienna Page 5 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 project/application. Mr. Dowler asked if there was anyone there to represent the application. Ms. O’Brien stated the applicant’s representative and the applicant were both there. Mr. Dowler inquired about the attorney who filed the application, Sara Mariska. Ms. Mariska stated she was there representing Sunrise. Mr. Dowler asked if she was orchestrating the witnesses. Ms. Mariska stated there were several people she felt should be sworn in so they are able to answer questions. Mr. Dowler asked for the witnesses. Mr. Dowler swore in the following people to give testimony for Sunrise’s CUP application: Scott Fleming, Jerry Liang, Travis Brown, and Kevin Fellini. Mr. Dowler asked Ms. Mariska for her opening statement. Ms. Mariska asked, if it pleased the Board, that staff give their brief presentation and then the applicant would give testimony. Ms. Kelly O’Brien stated that the location of the proposed project was on the corner Maple and Center. It was comprised of two office buildings built in 1983, one was one-story and the other was two-story at 10, 980 square feet of office space with 51 off street parking spaces. The applicant’s proposal is an assisted living facility of 83 living units and ground floor commercial space of 5,700 square feet with structure parking. The request before the Board was the approval of a Conditional Use Permit to allow assisted living, a CUP under MAC (Maple Avenue Commercial) Zone. The applicant asked for an extension of the time frame of construction. If the Board issued the CUP the code only allowed for six month to begin construction. Due to the complexities of the project the applicants would like an extension from six months to thirty months. Ms. O’Brien reviewed the MAC rezoning process for Sunrise with the Board. A February 2019 hearing with the BAR resulting in a recommendation to Town Council. The Planning Commission held hearings on April 24, 2019 and May 8. 2019. The hearings resulted in a recommendation for the CUP to the BZA and an additional rezoning hearing May 22, 2019. The next step is the Town Council hearing June 3rd with the need for a decision no later than August 2, 2019. Ms. O’Brien stated there were some concerns relating to the Fairfax County Health Care Advisory Board (HCAB). She explained that HCAB was for Fairfax County and the Town had its own regulations. There was nothing in the Towns ordinance or procedures requiring any use, assisted living or otherwise, to go to a County Board for any input. Mr. Creed stated the Board would usually recommend compliance with all County and State health requirements. He then stated he did not see a reason to tie the hands of the Board and not include that when the Board has always looked at health permits and fire regulations. Ms. O’Brien stated the Health Care Advisory Board (HCAB) was initially created to look at medical uses and their fit with the County and their medical policies. HCAB is part of the rezoning process for the County, but it is not part of the Towns process. Discussion continued regarding the Fairfax County Health Care Advisory Boards purview. Mr. Dowler stated that the Board has not required an applicant to get a license that they would not ordinarily obtain. The Board ensures the applicant is in compliance with what is required. Ms. Mariska stated they had worked for a long time on the project and stated the process. Sunrise met with the Board of Architectural Review, and many joint work sessions with Planning Commission and Town Council. The most recent meeting was the previous week with Planning Commission concluding in the recommendation to BZA for the adoption of a CUP for the assisted living use. Ms. Mariska stated that the use is consistent with the standards in the Towns ordinance for granting a Conditional Use Permit as it will enhance the area in terms of infrastructure and uses, and will contribute to the overall vibrancy of Town of Vienna Page 6 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 the Town. It will allow people to remain in Town who would not normally be able to as the use is not allowed elsewhere in the Town. Ms. Mariska stated that it was an opportunity to turn a vacant property to a show piece in the center of Town. She also mentioned that Mr. Liang had a slide presentation regarding their proposal and would answer questions after the slides. Mr. Liang, Senior VP of Development for Sunrise Senior Living thanked the Board for having them and for staff’s presentation. Mr. Liang stated that Sunrise was one of the country’s largest and oldest assisted living providers. Paul and Terry Klaassen founded it in Northern Virginia almost 37 years ago. They had humble beginnings and currently operate in over 320 communities across the U.S., Canada, and the U.K. Sunrise had been active in development in Northern Virginia brining new Sunrise locations and refreshing older existing buildings. Mr. Liang clarified that assisted living and senior living meant providing for the community assisted living and member care services. They would provide units for residents to live in and activities of daily living (assistance with bathing, dressing, feeding, restroom, medication, and with dementia programming). The building would be four stories of seniors, with the secured memory care floor located on the third floor. The secured third floor would provide a protected space for the residents and it would have a nice donut courtyard in the center. The assisted living would be on floors two, four, and the ground floor. The fundamental operating business is commercial providing senior care services with residents that stay with them. Residents are approximately 85-86 years old, including care for the frail and elderly. Mr. Liang stated he felt it was a fantastic place for those who love Vienna and would like to stay in Vienna and that location would afford them the ability to do so. Mr. Liang stated some other nearby locations, which he believed the high quality services of those locations could be brought to Vienna as well. Mr. Gadell stated Vienna had a slight traffic problem and asked for a detailed explanation of the amount of parking, even though residents would not drive. The impact on Maple would be based on the shuttle service and visitors. He also asked for the number of visitors that would come and the hours that they visit. Mr. Liang stated that location would be the lowest traffic and parking generators. The current location had been a medical office building housing INOVA urgent care with a significant traffic generator for the area. The residents would not drive per the proffer with the Planning Commission not allowing residents to have cars onsite. Visitors would be allowed during daytime hours and the doors would be locked at night. Family could come and go, but would need to be buzzed in. The primary traffic activity would be staff. The peak shift is off-shift from primary commuter peak hours. Shifts are 7am-3pm, 3pm-11pm, and 11pm-7am with peak being 30 minutes prior to start of shift. Mr. Gadell asked how many staff would be at the facility with 84 units. Mr. Liang stated peak would be approximately 35 employees. Mr. Creed asked for clarification from the unit counts, 40 single rooms, 23 double rooms, and 20 single or double rooms, versus bed counts, 103 maximum beds. Mr. Liang stated yes and no for the possibility of 103 maximum beds. They do offer the 3 primary room types mentioned by Mr. Creed. Mr. Liang described the 3 different room types and how they would be used. Mr. Creed asked if the maximum was no more than 103 people and Mr. Liang stated he would need to check the math, but it would be approximately that number. Mr. Creed asked for the difference in the number of beds or rooms between assisted living and memory care. Mr. Creed also stated the memory care side may make a difference in the parking. Mr. Liang explained that the memory care unit was smaller and only on the third floor with 26 units. Mr. Creed felt with employees, residents, and visitors that the traffic counts may be understated. Mr. Liang stated their traffic expert could provide better testimony. He continued stating that the combination of assisted living and memory care had been the standard for many years. It provided a good continuum of care allowing residents to age in place as the needs arise. Sunrise’s experience of visitors per Town of Vienna Page 7 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 unit type does not show significant difference between assisted living and memory care visitors. Mr. Liang expressed his appreciation for the Boards concern for parking in regards to the commercial business owners in the nearby area. He continued stating that Sunrise felt they had provided sufficient parking for the proposed facility. Mr. Creed stated the town does not reference, in the code, parking for assisted living, but that Fairfax County does under continuing care. Mr. Creed said the county requires around .75 parking spaces per resident and asked if they could speak on the parking requirements. Ms. Mariska stated parking was worked out based on other Sunrise facilities and nationwide transportation data for assisted living facilities. With that information it was decided that .40 spaces per unit would be adequate from the industry perspective and the transportation data. Ms. Mariska stated that per the parking concerns of possible impact to the adjacent properties they had prepared a couple proffers: a transportation demand management plan, incentivizing transit and car-pooling measures, and a valet parking plan. They would work with the town on a parking management plan setting parameters as to when that would be instituted. Large visitor days they would be able to implement the valet plan to accommodate any overflow parking if that were to arise. Ms. Mariska spoke on the question about Fairfax County’s rate which was in the process of being revamped. Mr. Petersen asked Mr. Liang to speak on the exception to section 18-216 of the town code, putting a six month time limit on the CUP until use or construction begins, and a thirty month limit to be used instead. Mr. Liang stated that if approved by the BZA and Town Council they would move forward as soon as possible. Mr. Dowler explained what they look at when considering a conditional use permit: the use will not adversely affect the health and safety of persons; it will not be detrimental to public health and interest of properties to neighbors. Mr. Dowler then asked how their use interacts with the neighbors and community. Mr. Liang stated they have a 37 year history of providing their services across Virginia and all of North America. They had won the JD Power Associates inaugural survey for quality in assisted living. Mr. Liang stated they had also been in touch with the owners of the Vienna Inn who were supportive of the design of the project and the project itself. Sunrise would like to locate there so residents can spend time with their families patronizing local establishments nearby. They plan to have events utilizing food from Vienna Inn, and coffee from Café Amouri. Employees, visiting families, and residents themselves would be net contributors to much of the surrounding area. Ms. O’Brien commented on the extension. She stated that it was not out of the ordinary to request an extension due to the lengthy building permit process (Vienna and Fairfax County) that comes after the approvals. Mr. Dowler asked if the CUP was contingent on the re-zoning approval, Ms. O’Brien said yes. Mr. Dowler inquired about the appropriate licensing if approved. Mr. Liang stated they would need to apply for a license for assisted living from the Virginia Department of Social Services. Mr. Petersen asked Ms. O’Brien if the thirty month figure came from the town or the applicant in consultation with the town. Ms. O’Brien stated the thirty month was from the applicant. Ms. Mariska stated the thirty month was from an abundance of caution, as they still needed to go to the Town Council for approval of rezoning, the Board of Architectural Review for final approval of elevations, site plan review, and building plan review processes. Thirty months is a standard number in Fairfax County for construction to commence, but they would be happy to entertain a lesser number. Ms. Mariska stated Mr. Brown from Walter Phillips was present to answer any questions regarding the construction processes. Town of Vienna Page 8 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 Mr. Petersen stated that 2 ½ years is a long time to have that part of Vienna sit without activity commencing. Mr. Brown stated the applicant would need to go before the BAR upon approval from Town Council. They would need to file a construction site plan, which can take from six to twelve months for approval depending on the complexity of the work. Replacement of a large storm culvert and relocation of sanitary sewer will need detail town staff review. Building permit review (by Town and County) can take anywhere from twelve to fifteen months. Any issue or delay could push the review out further which was the reason for the abundance of caution of thirty months stated by the attorney. Mr. Creed stated that most of what Mr. Brown was describing was done in the town by public works and planning and zoning so the detail should not be as long. Mr. Creed said that Green Hedges had asked for twenty-four months and began construction after about six months and could have made the time frame. Mr. Brown stated it would be difficult to begin construction in six months and that twelve months could be reasonable for permitting. Mr. Creed asked if thirty months may be too long. Mr. Brown stated it may be a little longer than necessary, but that the attorney felt it was appropriate based on other jurisdictions and their knowledge. Mr. Creed asked for someone to address the parking concerns. Mr. Fellini from Wells & Associates came forward to speak on their reasoning that adequate parking. He stated they measured the demands of various facilities in the Virginia, Maryland, and DC area for parking and times of occurrences. The peak time, across the board with the facilities, was around 3pm with visitors, and staff. The complimentary hours of the retail, which is not to have any restaurant use, will benefit the site/parking. Mr. Petersen inquired about the proposal to raise a standard six foot fence to eight feet as a shield and the request to reduce bike racks from 27 to 7 as there would not be much biking associated with assisted living. The request would be contrary to the master plan of Vienna to be more walkable, pedestrian friendly and encourage the use of biking, although there will be commercial space that may attract those on bicycles. Ms. Mariska stated, in conversation with the Planning Commission, it was suggested that an eight foot fence would help in keeping with the scale of the building, and provide screening. In response to the comments, they proposed the eight foot fence. The bike parking requirements are not specific to use, but they do believe there will be cyclists in reference to the commercial use and employees for the facility. The 103 possible residents would not be using bikes. The bike parking proposal is in front of the site along the streetscape and internal to the parking garage. They did not intend to provide a shortage of bike parking, but bike parking that would serve employees and patrons of the retail in keeping with those needs. Mike Magnotti, owner of 108 Center St N. was sworn in to speak. Mr. Magnotti stated there was concern about parking by the surrounding commercial properties in reference to Sunrise due to the current parking problems. Mr. Magnotti stated that the people he had spoken too that have family in assisted living visit them every day. With the math he has done regarding the amount of beds, he assumes the parking will be full. He then stated that the count in reference to parking should be per beds and not units. Mr. Magnotti stated that his understanding was that the assisted living use would cause more of an issue for parking. Mr. Magnotti continued speaking on the issues of parking, recent meetings for parking, and potential resolutions for parking. Mr. Magnotti concluded that he liked the idea of assisted living, but felt that location was the wrong place for it due to parking and asked for the Board to deny the application as he felt it would be a disaster for the town. David Patariu, 205 Niblick Dr., was sworn in to speak. He stated that there were no parking requirements for assisted living in the town code so the MAC requirements were Town of Vienna Page 9 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 being applied into assisted living. Mr. Patariu stated the number of parking spots were not adequate per the casual review of the numbers. There would be 300% growth in the size of the development of the property with parking increased by a nominal amount. There is a common sense check in the growth of the building size and the parking capacity that should raise concern. Mr. Patariu stated Fairfax County requires more parking using their standards and they have more experience and thought more about assisted living centers than the Town of Vienna at no criticism to the town. Mr. Patariu continued with the Fairfax County requirements for assisted living parking. He spoke on the Wells & Associates report and the WRA report referencing the parking capacity issues. Mr. Patariu stated that the Hunter Mill facility has 75 units with 37 spaces available with Vienna have 27% fewer spaces. Mr. Patariu felt comparison to DC as it is not Vienna and has different requirements and he noted that the memo stated that parking may exceed available capacity. Mr. Patariu continued speaking on parking. He also questioned where the ambulances would go as he felt they typically go to the address of the building and that an ambulance would stop on Maple and close a lane of traffic. Charles Anderson, 125 Pleasant St NW, was sworn in to speak. Mr. Anderson stated that this was the first conditional use application for a MAC project for a highly specialized use which was new to Vienna. Mr. Anderson asked if the business best fits that site and the goals of MAC. He pointed out that Fairfax County has denied Sunrise due to a poor fit for the site. Mr. Anderson stated the town does not have the resources to determine if an assisted living facility promotes the health and safety of the residents and employees as it is not an urgent care facility. He stated that Fairfax County has a Health Care Advisory Board (HCAB) that advises the Planning Commission of Fairfax if an assisted care unit is appropriate for a site. Mr. Anderson gave an overview of the purview of the Fairfax County HCAB. He then discussed what he believed would happened with an ambulance and any additional medical emergency vehicles. Mr. Anderson asked that the applicant go under a voluntary Fairfax County HCAB review even though it is not required. Regarding the impact on property values, Mr. Anderson stated there is a need for assisted memory care, but felt it would not create synergies with local businesses, but would make it worse due to severe over parking specifically for Vienna Inn, Café Amouri, and 108 Center St. office complex. Mr. Anderson said he understood the desire for there no longer to be a vacancy at that location, but that there was only a vacancy due to the speculation caused by MAC. Mr. Anderson stated his concern with and assisted living facility being next to a bar and one across the street as well and that it would not work if they allowed the two to try to co-exist. Mr. Anderson spoke on the location of the site, potential construction difficulties (including water tables), whether or not it was in accordance with the Master Plan /Comprehensive Plan, and parking issues. Mr. Liang stated that although there were number of points raised by members of the public as well as a number of inaccuracies that should be properly addressed he would try to be brief. Mr. Liang stated he wanted to clarify some of the parking concerns. In regards to the type of use and the change in the size of the building with limited change in parking spaces, Mr. Liang stated a medical office building has a high demand of parking and usage, whereas a senior facility has a lower demand for parking and usage. Fairfax County’s requirement for a CCRC (continuing care retirement center) are frequently set up with hundreds of units which are primarily independent living allowing residents to own cars. The .75 per unit or be is applicable to a building/use that was not was being proposed. Mr. Liang explained how the parking space is designed and how the ambulance space is designed and used. The access point off of Center was chosen due to it being the current curb cut that had been used as the access point for all vehicle and ambulance access. Due to utilities, the first floor would have a 20 foot high ceiling giving a comfortable and high space for an ambulance to pull in. Mr. Liang explained the 14 parking spots for seniors and retail when pulling in, and the ramp down to garage with the Town of Vienna Page 10 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 additional parking spaces. Mr. Liang pointed out that the parking is driven by the retail just as much as the seniors and showed in the slide what the requirements were. He also pointed out that their use was a commercial use and therefore qualified without the retail for MAC, but were not trying to eliminate retail for their submission. Mr. Liang informed the board that they had submitted that day a revised proposal reducing the commercial down to approximately 2,200 square feet only requiring twelve parking spaces, but they were not altering the amount of space they were providing. Mr. Petersen stated that the written submission to the Board stated 5,700 square feet of commercial retail space. He then asked Mr. Liang if that was no longer applicable as of earlier today, Mr. Liang stated that was correct. Mr. Petersen then asked what the new figure was to which Mr. Liang said 2,264, which was in response to the Planning Commission’s request. Mr. Petersen asked how that would address the land use request that the town encourages a vibrant central business district and then asked Mr. Liang to answer it at any point during his response time. Mr. Liang continued explaining the difference in parking for seniors with the reduced retail. Their experience with emergency medical services is vast and they build a relationship with the local emergency medical services. Due to their services provided, an ambulance will not always come with a fire truck. The buildings have a high fire standard with an I2 fire rating, ability to defend in place. There is a dedicated space created just for ambulance parking close to the elevator and entrance to upper floors for seniors. Mr. Liang responded to the comment that Fairfax County rejected an application in reference to site and it was years ago in McLean opposite to the proposed site. The site in Fairfax County that was rejected was in a highly residential area and it was deemed unsuitable due to its proximity to residential and it was recommended to find a place closer to the central business district of McLean. In response to Fairfax County’s HCAB, it is a unique factor to Fairfax County as other counties do not require the review by HCAB. Mr. Liang stated that Alexandria had few and limited experience with assisted living facilities, but they were able to review and approve two facilities without a need to go to a HCAB. They were recently, approximately two years ago, approved by Fairfax County’s HCAB for a facility in Fairfax and in Burke where they provide the same service. Mr. Liang stated they could retract their thirty month extension request down to the twenty four month extension request that had been approved for the Chic-Fil-A, another MAC project. He also stated that the site became vacant after INOVA moved out and not due to Sunrise’s proposal. Mr. Liang continued by discussing the uses for the building and which nearby facilities it would be similar too. Staff was able to bring up the retail space reduction to which Mr. Liang reviewed and explained per the slide. Mr. Creed asked if Sunrise was aware of the water issues and if there would need to be a major construct to create a water diversion. Mr. Liang stated they were well aware of the high water table and the significant increase in cost to do any underground parking. They have factored that into the engineering of the 1 floor of underground they are able to provide. Mr. Creed asked if it would cause issues creating the parking they propose, Mr. Liang said no, they would be able to build their one floor of underground parking. Mr. Creed stated the EMS that is one block away that will respond and that there would need to be adequate parking for the EMS ambulances and fire trucks as they roll together. Mr. Creed explained that Vienna was at the end of the metro lines and people live further South and West due to lower housing cost and would drive to Vienna, continuing by explaining what transportation is or is not available. Mr. Dowler asked for a motion to close the public hearing. Mr. Gadell made a motion to close the public hearing Motion: Gadell Second: Haight Town of Vienna Page 11 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 Passed: 5-0 Absent: Daly Abstain: Rak Mr. Dowler requested a five minute recess. 3. Regular Business The Board of Zoning Appeals (BZA) met in regular session to review one advertised public hearing in the Council Room of the Vienna Town Hall, located at 127 Center Street, South, Vienna, Virginia, on May 15, 2019, beginning at 8:00 PM with Robert Dowler presiding as Chair. The following members were present: Jonathan Rak, Robert Petersen, George Creed, Gregory Haight, and Michael Gadell. Bill Daly was absent. Also attending and representing staff were Frank Simeck, CZA, Senior Zoning Inspector, Kelly O’Brien, Principal Planner, and Sharmaine Abaied, Board Clerk. Mr. Dowler called the meeting back to session for the regular meeting / non-public portion of the meeting in which the public was willing to stay, but unable to participate. Mr. Dowler asked if there was a motion for Item No. 2 and that the issues were whether or not to grant a conditional use permit, and the issue of resolving the request of extension of time to commence the project contingent upon Sunrise obtaining the MAC rezoning approval. Item No. 2 Request for a conditional use permit for assisted living as part of a rezoning to the Maple Avenue Commercial (MAC) zoning district. Applicant proposes a mixed-use building with retail space on the ground floor and senior assisted living facility above. Mr. Petersen made a motion to approve the request for a conditional use permit for an assisted living with part commercial retail facility at 100-112 Maple Ave E per the staff report submitted. The approval of the CUP would be contingent on the applicant receiving rezoning from the Town Council. With the approval there would be an exception to rule 18-216 (of the Vienna Town Code) which limits the validity of a CUP to six months unless construction or operation related to the request has commenced. The exception would be altered to twenty four months instead of six months. Mr. Creed stated that the motion might need to be altered to state “per the submission as modified today” (5/15/19). Mr. Petersen agreed to the altered motion. Mr. Dowler reiterated the motion: a motion to approve the request for a conditional use permit for an assisted living with part commercial retail facility at 100-112 Maple Ave E as described in the staff report as modified by May 15, 2019. The motion would also still include the contingency of the Councils approval per MAC rezoning and section 18-216 to be extended to twenty four months. Mr. Petersen spoke in favor of his motion and stated he was impressed by the issues raised by those in favor and opposed to the CUP request. One deciding factor, in favor of the motion, was the application provides a facility that is currently lacking in Vienna and will permit some residents of Vienna to age in place. The second factor was that it will provide some retail commercial space where none currently exists. Town of Vienna Page 12 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 Mr. Creed stated he wasn’t speaking in favor or against, but encouraged the Council to evaluate the parking and other issues as those are not up to the BZA. Mr. Dowler stated he agreed with Mr. Creed’s comments as the Board is involved with the usage as stated in 18-209.1, 2, and 3. This would involve the Board with the use and safety in and around the neighborhood. The Board is not involved with the parking, the size, and shape of the building. That would involve the Town Council when the application goes before them for rezoning. Mr. Gadell spoke stated he agreed with Mr. Petersen about the issues raised. He said he was sympathetic and concerned with traffic and parking. Town Council set a hearing for June third and the BZA is allowing for the conversation to move forward. Mr. Gadell stated that he did not believe any business going into that space would go without parking issues, traffic issues, and congestion issues. Mr. Dowler called for a vote. Motion: Petersen Second: Creed Passed: 5-0 Absent: Daly Abstain: Rak 4. Approval of the Minutes: Mr. Dowler asked if there was a motion to approve the April minutes. Mr. Petersen made a motion to approve the minutes, Mr. Creed seconded the motion. Motion: Petersen Second: Creed Passed: 6-0 Absent: Daly Mr. Creed, Mr. Dowler, and Mr. Petersen stated they would not be present for the June meeting. Mr. Simeck stated the Board would need a quorum. Mr. Rak asked if the meeting could be changed to another day in the month. The Board discussed which day would work best in reference to other meetings and the deadlines for application reviews. 5. Meeting Adjournment Mr. Dowler asked for a motion to adjourn. Mr. Creed made the motion to adjourn, Mr. Rak seconded the motion. Motion: Creed Second: Rak Passed: 6-0 Absent: Daly The meeting was adjourned at 10:42. Respectfully submitted, Sharmaine Abaied Board Clerk Town of Vienna Page 13 Printed on 10/1/2019 Board of Zoning Appeals Meeting Minutes May 15, 2019 THE TOWN OF VIENNA IS COMMITTED TO FULL COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT STANDARDS. TRANSLATION SERVICES, ASSISTANCE OR ACCOMMODATION REQUESTS FROM PERSONS WITH DISABILITIES ARE TO BE REQUESTED NOT LESS THAN 3 WORKING DAYS BEFORE THE DAY OF THE EVENT. PLEASE CALL (703) 255-6341, OR 711 VIRGINIA RELAY SERVICE FOR THE HEARING IMPAIRED. About the Board of Zoning Appeals The Board of Zoning Appeals is a quasi-judicial board comprised of seven members – all of whom are residents of the Town of Vienna, VA. The Board serves as an arm of the Fairfax County Circuit Court, as all members are appointed to the Board by the Court after receipt of recommendation from the Vienna Mayor and Town Council. The Board is empowered by the Code of Virginia to: 1. Hear and decide appeals from any order, requirement, decision or determination of the Zoning Administrator. 2. Grant variances from the Zoning Ordinance – as defined in Section 15.2201 of the Code of Virginia – as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement of the provisions will unreasonably restrict the utilization of the property to a degree that is not shared generally by other properties within the same zone or district, and its authorization will not be of substantial detriment to adjacent properties or change the character of the neighborhood 3. Hear and decide applications for interpretation of the Zoning District Map when there is any uncertainty as to the location of the boundary line. 4. Grant Conditional Use Permits in accordance with the provisions of Section 18-209 – 216 of the Vienna Town Code. The Board of Zoning Appeals does not have the power to change the Zoning Ordinance or the rezone property. Those powers rest with the Mayor and Town Council. Please be advised, the Board decides each application on its own merit – there are no precedents. The Board will first consider each application during the Public Hearing portion of the meeting. As part of the Virginia Court System, the Board of Zoning Appeals takes sworn testimony and each participant will be sworn in prior to offering comments. The second portion of the meeting – the Regular Meeting – will convene after the Public Hearing has been closed. The Board will reach a decision on each item. The grand of any appeal from a decision by the Town's Zoning Administrator requires an affirmative vote of a quorum, no less than a majority of membership (4), of the Board. The grant of a Conditional Use Permit or variance requires an affirmative vote of a quorom, no less than a majority of membership (4), of the Board. If you are unable to stay for the last portion of the meeting, you may learn the Board’s decision by contacting staff. If any party is not satisfied with the decision of the Board, an appeal may be filed with the Circuit Court of Fairfax County within 30 days after the issuance of the Board’s decision on the matter. Town of Vienna Page 14 Printed on 10/1/2019