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, November 18, 2020 7:00 PM COUNCIL CHAMBERS-VIENNA TOWN HALL Online Meeting If you would like to participate via Zoom, please register here: https://us02web.zoom.us/webinar/register/WN_LhY3z6zpRMOgri6uu2W9BQ BOARD OF ZONING APPEALS ONLINE PUBLIC HEARING November 18, 2020 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 November 18, 2020 beginning at 7:09 PM with George Creed presiding as Chair. The following members were present: Daniel Nash, Jonathan Rak, Robert Petersen, Robert Dowler, Michael Gadell, and William Daly. Also attending and representing staff were Frank Simeck, CZA, Kelly O’Brien Principal Planner, and Sharmaine Abaied, Board Clerk. Roll Call Mr. Creed asked for the roll to be called with all members being present. Resolution - Continuity of Government - November 18, 2020 Mr. Creed read the Resolution for Continuity of Government with Mr. Petersen seconding the motion. Mr. Creed then asked for a roll call vote with 7 ayes, and 0 nays. Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler. Mr. Creed explained the purview of the Board of Zoning Appeals Public Hearing 244 Hillside Circle SW - Request for approval of a variance from Sections §18-15.C & §18-15.E of the Vienna Town Code in order to construct an addition and screened porch beyond the required front and rear yard setback lines Mr. Todd Thompson and Ms. Desiree Dimauro, 244 Hillside Cir SW, were sworn in to speak. Mr. Thompson stated they were requesting a variance for their 1950’s split level house with an attached carport. They were requesting to enclose the carport to increase the living space. The purpose for increasing the space was to add a bedroom and bathroom on the main level of the house for his disabled father. Town of Vienna Page 1 Printed on 3/19/2021 Board of Zoning Appeals Meeting Minutes November 18, 2020 Mr. Creed asked Mr. Simeck for the Town’s position on the application. Mr. Simeck stated the facts of the application, listed in the staff report. The development plan from 1955 had 15 single family lots around 26-27 feet from the property lines. The lots at the time were RS-20 which is no longer a zoning district. When rezoned, it was rezoned RS-16 making the lots non-conforming. Mr. Nash asked when the property was rezoned. Mr. Simeck stated it was rezoned in the early 1960’s Mr. Dowler asked if the footprint of the carport would be enlarged as part of the proposed enclosing of the carport. Mr. Thompson stated the front would be extended one cinder block brick course. The variance request shows only 10 feet for the variance due to the rezoning which made the lot non-conforming. Mr. Thompson stated the lot coverage would be decreased with the proposed changes. Mr. Dowler inquired about the current front setback. Mr. Thompson stated that when the property was rezoned, their home and carport were then beyond the required setbacks. Mr. Creed commented on the way the home was situated on the property. He then asked if there were any attendees who wished to speak on the variance request. Ms. O’Brien stated there were not audience members requesting to speak. Mr. Creed asked if any Board Members who wished to speak, there were none. Mr. Creed asked for a request to close the public hearing. Mr. Gadell made a motion to close the public hearing for the variance request. Mr. Nash seconded the motion. Motion: Gadell Second: Nash Passed: 7-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, and Mr. Dowler. 7 Ayes, 0 Nays Mr. Dowler made a motion to approve the variance request as submitted. Mr. Nash seconded the motion. Mr. Dowler stated that he believed the request was a hardship as the lot was odd shaped with current setbacks making it impossibly narrow when building, effecting the usefulness of the property. The house, when built, was in the appropriate setbacks, but the setbacks have been changed causing a hardship. The applicants are not building a new home, but just building with in the current footprint. Mr. Nash agreed with Mr. Dowler and stated that since they weren’t increasing, but decreasing their footprint and that the rezoning setbacks were put upon them after the house was built he was in favor of the application. Mr. Rak stated he agreed. Town of Vienna Page 2 Printed on 3/19/2021 Board of Zoning Appeals Meeting Minutes November 18, 2020 Mr. Creed asked for any other comments, there were none so he asked for a roll call vote. Motion: Dowler Second: Nash Passed 7-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 7 Ayes, 0 Nays. 435 Maple Ave W - Request for approval of a conditional use permit from Section 18-211 of the Vienna Town Code for outdoor dining and live entertainment Mr. Tom Kyllo of, 114 Elmar Dr SE, was sworn in to speak. Mr. Kyllo presented his walk through rendering to the Board. He stated they would be turning the old Joe’s Pizza into a British pub by changing the front façade. They were going to close off one of the Maple St. entrances to provide an outdoor seating area. The outdoor seating area is around 525 square feet holding close to twenty-five people. The table next to the building would be moved to allow the outdoor music performance area. The building would be the buffer between the music and the neighbors to the North. The music would be acoustic, with no drums, bass guitar, or amplified instruments. They are requesting outdoor music on Thursday until 10:00 pm and weekends until 11:00 pm. Mr. Kyllo moved to the interior portion of the proposed business showing the “snugs” which could provide two locations of for indoor music. There would also be possibilities for live music on the stage. Mr. Creed asked for the total seating capacity. Mr. Kyllo stated there would be 126 seats inside and 25 outside. Mr. Creed asked if the 151 total seating would be allowed. Mr. Kyllo corrected and stated they would be allowed 132 maximum occupants inside, and outside. Mr. Creed asked if all music venues could operate at the same time. Mr. Kyllo stated they would not as it would be too chaotic, they would only utilize either the indoor or outdoor music. If music was played inside they would only utilize one of the interior music locationss. Mr. Dowler asked if they would only have acoustic music outside, Mr. Kyllo stated that was correct. Mr. Dowler asked if they would have amplified music inside. Mr. Kyllo stated inside they would have amplification, but it would be external. Instruments would not have plug in amplification; it would be an external microphone such as that which a singer would use. Mr. Dowler asked if the indoor music would be broadcast outside, Mr. Kyllo said no. Mr. Creed asked what seasonal represented when in reference to the music in Mr. Kyllo’s application. Mr. Kyllo stated seasonal was listed as they would not be having outdoor music during the colder times of years. Mr. Creed ask if seasonal represented anything inside, Mr. Kyllo said no. Mr. Creed asked if there would be adequate parking. Mr. Kyllo stated they would be the main use on the site and the upstairs business would be an office only needing to utilize five parking spaces. There is also a parking agreement that after office hours (9am-5pm) the five parking spaces would be turned over to the restaurant. Mr. Creed asked if there were any additional parking agreements, Mr. Kyllo said there were none at that time. Mr. Creed asked if any audience members would like to speak. Town of Vienna Page 3 Printed on 3/19/2021 Board of Zoning Appeals Meeting Minutes November 18, 2020 Madolynn Stemmer, 440 Windover Avenue NW, was sworn in to speak. Ms. Stemmer stated that she and her husband, Steve, own the residence at 440 Windover Ave NW which is directly behind the proposed Hawk & Griffin House British public house. She stated they have some concerns regarding the risk to public health, safety, and broad potential for the nuisance live outdoor entertainment poses. She stated Mr. Kyllo agreed with the neighbors to no music on Thursday’s, but they still felt the limited space between the business and residences did not offer enough barriers to mitigate the noise from live music. Ms. Stemmer felt limiting outdoor music to Fridays and Saturdays ending at 9 pm with acoustic guitar music could help. Ms. Stemmer mentioned the challenges of Bey Lounge, who also hosted live entertainment, and was adjacent to residences. Due to the concerns mentioned by Ms. Stemmer, she asked the Board to limit the outdoor live entertainment. Mr. Creed asked if any Board Members had any comments for Ms. Stemmer. Mr. Rak stated that he understood that Mr. Kyllo was limiting the music to unamplified acoustic, without percussion therefore that request was already addressed. Mr. Rak asked Mr. Kyllo to confirm if that was accurate. Mr. Kyllo stated that was the case and that he had agreed that they would limit their music to Fridays and Saturdays when they open, but would want to move into Thursdays at a later date. Mr. Kyllo stated they would be providing a six foot barrier fence to help control the sound. Ms. Penny Oszak, 221 Nutley St NW, was sworn in to speak. Ms. Oszak spoke in support of Mr. Kyllo’s proposed business as she felt it would be a great addition to Vienna. She stated she lived close to the area of the business so she understood the noise concerns, but felt that since Mr. Kyllo is a resident of Vienna he would try to mitigate any issues that may crop up. She appreciated his willingness to listen to the neighbors close by and work towards meeting them half way. Mr. Creed asked if any other audience members would like to speak, there were none. Mr. Creed spoke about the list of emails regarding public comment that had gone to the Planning Commission and were subsequently sent to the BZA to read and review. Mr. Creed stated there were thirty-five emails in support of the application and one email not in support of the application. Mr. Creed asked for a motion to close the public hearing. Mr. Rak made a motion to close the public hearing Mr. Dowler seconded the motion Motion: Rak Second: Dowler Passed: 7-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, and Mr. Dowler. 7 Ayes, 0 Nays Mr. Creed asked for a motion. Town of Vienna Page 4 Printed on 3/19/2021 Board of Zoning Appeals Meeting Minutes November 18, 2020 Mr. Rak made a motion to approve the conditional use permit. Mr. Rak then asked if limitations on the nights and types of music would be conditions for the approval. Ms. O’Brien stated that percussions were not in the original application, but the hours were included. Mr. Dowler thought they could itemize stating the outdoor entertainment would cease: Thursdays at 10 pm, and Fridays and Saturdays at 11 pm, and limited to acoustic music with no percussion. Mr. Rak accepted that friendly amendment to his motion. Mr. Daly seconded the motion. Mr. Creed asked for discussion. Mr. Rak stated he felt the proposal and applicant took the concerns of the neighbors into consideration. The wall facing Maple Ave should mitigate noise issues. The limitations and restrictions agreed to are a reasonable balance to the neighbors’ concerns. Mr. Rak stated this would follow the comprehensive plan with revitalization in the town. Mr. Creed asked for the roll call vote. Motion: Rak Second: Daly Passed 7-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 7 Ayes, 0 Nays. Approval of the Minutes Mr. Creed moved to the regular meeting portion and asked for discussion or a motion to approve the minutes. Mr. Dowler made a motion to approve the minutes. Mr. Daly seconded the motion. Motion: Dowler Second: Daly Passed 7-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 7 ayes, 0 nays. There was discussion about the potential for a December meeting. Mr. Dowler asked if there was any information regarding the decision of the Board for an earlier meeting’s agenda item. Mr. Creed stated he had spoken with the town attorney and not heard anything as of yet. Meeting Adjournment Mr. Creed asked for a motion to adjourn. Mr. Dowler motioned to adjourn the meeting Mr. Daly seconded the motion Town of Vienna Page 5 Printed on 3/19/2021 Board of Zoning Appeals Meeting Minutes November 18, 2020 Motion: Daly Second: Gadell Passed 7-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 7 ayes, 0 nays. The meeting was adjourned at 8:07 PM. Respectfully submitted, Sharmaine Abaied Board Clerk 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 Town of Vienna Page 6 Printed on 3/19/2021 Board of Zoning Appeals Meeting Minutes November 18, 2020 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. During the public hearing each agenda shall be closed a decision will be rendered. The grant of a Conditional Use Permit, Variance, or appeal from a decision by the Town’s Zoning Administrator requires an affirmative vote of no less than a majority of membership, of the Board. The Board consists of 7 members and a majority consists 4 members. If the applicant is unable to stay for the Board’s decision portion, the applicant may learn the Board’s decision by contacting staff. The second portion of the meeting – the Regular Meeting – is for approval of meeting minutes and new business and will convene after the Public Hearing has been closed. 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 7 Printed on 3/19/2021