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, March 17, 2021 7:30 PM COUNCIL CHAMBERS-VIENNA TOWN HALL Continuity of Government - Electronic Participation 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 March 17, 2021 beginning at 7:30 PM with Jonathan Rak presiding as Chair. The following members were present: Daniel Nash, George Creed, Robert Petersen, Robert Dowler, and Michael Gadell. Also attending and representing staff were Frank Simeck, CZA, Kelly O’Brien Principal Planner, and Sharmaine Abaied, Board Clerk. BZA Resolution for Continuity of Government - March 17, 2021 Board of Zoning Appeals March 17, 2021 Resolution for Continuity of Government Mr. Rak read the Resolution for Continuity of Government with Mr. Petersen seconding the motion. Mr. Rak then asked for a roll call vote with 6 ayes, and 0 nays. Ayes: Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Gadell, Mr. Dowler, Mr. Creed. Mr. Rak told the Board members and audience members that Mr. Daly had stepped down from his position as Board member. Roll Call Mr. Rak asked for the roll to be called with all members being present. Public Hearing 414 Council Dr NE - Request for a Variance Request for approval of a variance from Sections §18-49 of the Vienna Town Code to construct a deck beyond the required rear yard setback lines on the property located at 414 Council Dr NE in the RTH, Townhouse zoning district. Application filed by Mr. Lazaro E. & Mrs. Lori A. Andino, owners. Mr. Lazaro E. Andino, 414 Council Dr NE, was sworn in to speak. Mr. Andino explained to the Board the reason for the request was to be able to build a deck four feet beyond the rear setback allowing a thirteen feet deep deck. A chimney protrudes into the area of the proposed deck by two feet limiting usable deck space. Mr. Dowler asked if Mr. Andino was one of three lots applying for a variance. Mr. Andino stated he was one of two building a deck and the third neighbor was not building a deck but Town of Vienna Page 1 Printed on 5/7/2021 Board of Zoning Appeals Meeting Minutes March 17, 2021 had a different project. Mr. Dowler asked if it was the neighbors on either side of him, Mr. Andino said yes. Mr. Dowler then asked what size the proposed deck of his neighbors would be. Mr. Andino said he didn’t know, but that the daughter of the homeowner was present and could answer the question. Mr. Dowler asked if all three decks would be the same depth, Mr. Andino stated he believed they would be the same depth. Mr. Dowler asked if the townhouse was already encroaching three feet into the rear set back. Mr. Andino said he was not aware if that was correct. Mr. Dowler pointed to the survey that was provided which showed the townhouse encroaching three feet into the rear setback. Mr. Dowler asked if the neighbor at 416 would be applying for a variance, Mr. Andino stated they were already in the process of applying for a variance. Mr. Rak asked Mr. Simeck to explain the setback and the house encroachment. Mr. Simeck explained the setback to the board. Mr. Rak then asked if the encroachment was approved when the home was built, Mr. Simeck gave the history of the construction stating through the plat approvals of Council Square 2 and Council Square 2A waivers were granted to reverse the rear and front yard setbacks. Section 17-12 allows applicants to request modification of requirements when they are subdividing. Mr. Creed asked why there is a wall at the back of the property and why is an owner not allowed to build back towards the wall. Mr. Andino said he understood it was due to a setback. Mr. Simeck said there was a code provision that requires a wall to be erected between zones. The wall was put in when the subdivision was approved. Decks are only permitted to be built 28 feet from the rear per the code. Mr. Creed asked how much the other properties would be encroaching into the rear yard setback. Mr. Simeck stated he believed it would be similar. Mr. Gadell asked if the other neighbors currently had decks. Mr. Andino said the neighbor at 412 currently had a deck at 12 feet in depth. Mr. Gadell then asked if they had to apply for a variance for the deck to be built, and Mr. Andino said no. Mr. Dowler asked Mr. Andino how he was unreasonably restricted in the use of his property. Mr. Andino said that a 20x9 deck with an extruding chimney, table, and gas grill would be unsafe. Mr. Rak asked if there were any people present who would like to speak on the application. Mr. Jacob Greenspun, 248 Church St NE, was sworn in to speak. Mr. Greenspun stated the neighbors, Mr. Perrone, was requesting a variance as well for a 16x13 deck. There is another house in the same row that has a much larger deck, extending within 12 to 15 feet of the property line and they were granted a variance. The Andino’s front property line extends into the public drive making that portion of their property unusable. Mr. Rak asked if Mr. Greenspun was the contractor for the Andino’s and Mr. Greenspun stated he was the contractor for three houses. Mr. Dowler asked if the decks would be the same depth. Mr. Greenspun stated that the Andino’s and Perrone’s decks would be 13 feet off their house. The Perrone’s home is set back further than the Andino’s so they may have a 2-foot difference. Mr. Gadell asked about the difference in the height of the deck and the height of the brick wall separating the two zones. Mr. Greenspun stated the deck was 8 feet high and the wall was 9 feet 7 inches. Mr. Gadell asked if the deck would overlook the brick wall. Mr. Greenspun stated the deck would be 25 feet from the wall and would not be different than looking out their second story window. Town of Vienna Page 2 Printed on 5/7/2021 Board of Zoning Appeals Meeting Minutes March 17, 2021 Ms. Chandra Townsend, 412 Council Dr NE, was sworn in to speak. Ms. Townsend stated they were in favor of the Andino’s variance request even with the staggered townhomes. She stated another deck in their row had a variance, and that all of the townhomes had trees to add privacy so the height of the decks should not cause a privacy issue. Ms. Townsend concluded by stating neighbors on all sides are working on improving their properties to make them more livable. George Hoadley, 406 Council Dr NE, was sworn in to speak. Mr. Hoadley spoke on the variances that the builder had received. He also spoke on the variance he had received 20 years earlier for a deck. He then stated there was a tree line on the other side of the brick wall and the residents of the single-family homes also had elevated decks that allowed for a potential privacy issue for the townhomes. All the town homes that back up to the brick wall have decks that are as close as 12 feet from the wall. The developer was allowed to add more townhomes than the allowable space by receiving variances. The Andino’s will enjoy the deck and decks add to the comfort of the home. He then stated he would hope the Board granted the variance. Mr. Rak asked if any attendees online would like to speak on the variance application and he asked if any others in council chambers would like to speak. No additional people present in the meeting wished to speak Mr. Creed made a motion to close the public portion of the hearing Mr. Nash seconded the motion Motion: Creed Second: Nash Passed: 6-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, and Mr. Dowler. 6 Ayes, 0 Nays Mr. Rak asked for a motion. Mr. Dowler made a motion to grant the variance Mr. Nash seconded the motion. Mr. Dowler stated it was a close case as it was not super clear if there was an unreasonable restriction on the use of the property. There are several other decks in place in the community and the rear yard setback is narrower due to the house already encroaching in the setback, equal to the amount that was being requested. Mr. Dowler mentioned that the chimney was also restricting the size of the deck. He continued stating that although there was a door for the deck in the location of the proposed deck it should not necessarily entitle a person to a deck. The wall, the trees, and no neighbor opposition as well as the other items stated are evidence of a reasonable request showing the unreasonable restriction on the land. Mr. Petersen stated he understood the arguments in favor of the variance to provide more usable space. He continued stating that sticking with the restriction of the ordinance would not unreasonably restrict the use of the property. He understood the property would be enhanced with the larger deck, but to stay within the limits of the ordinance would not Town of Vienna Page 3 Printed on 5/7/2021 Board of Zoning Appeals Meeting Minutes March 17, 2021 restrict the use of the property. For that reason, he was not able to support the motion. Mr. Nash stated the consistency of the setback does not allow for the location of the townhomes. The 3-foot variance allowance for the townhome setback encroachment counts for the 3-foot difference for the deck they are requesting which is common to the neighborhood. Mr. Gadell stated he agreed with both Mr. Petersen and Mr. Dowler. He didn’t think 9 feet would create a hardship, but how is this hardship different from the hardships granted earlier. Each variance stands on its own merits, but this townhouse is not different from any of the others that currently have decks and would have needed variances. Mr. Gadell stated he didn’t feel it would create a hardship but did not see how that deck was any different from the others. Motion: Dowler Second: Nash Passed 4-2 Ayes: Mr. Nash, Mr. Rak, Mr. Gadell, Mr. Dowler Nays: Mr. Petersen, Mr. Creed 4 Ayes, 2 Nays. 332 Maple Ave E - Request for a Conditional Use Permit Request for approval of a conditional use permit from Section 18-81.E and 18-210.II of the Vienna Town Code for a drive-through facility at 332 Maple Ave E, in the C-1A, Special Commercial zone. Application filed by Robert Brandt with Walsh, Colucci, Lubeley, & Walsh, on behalf of Burke & Herbert Bank. Mr. Robert Brandt, 2200 Clarendon Blvd Suite 1300 Arlington, VA was sworn in to speak. Mr. Brandt had a PowerPoint presentation for the Board explaining first that the location was at 332 Maple Ave E. and followed up with a brief history of the location and the building. Mr. Brandt also presented the current conditions of the location and site at 332 Maple Ave E to the Board. Burke and Herbert was proposing to do significant improvements to the interior and exterior of the building located at 332 Maple Ave E. There will be improvements to the accessibility as well as restriping onsite to improve the parking spaces while still meeting parking requirements. The existing drive through facility will remain. Mr. Brandt showed renderings of the proposed exterior modifications that had been approved by the Board of Architectural Review at a previous meeting. Mr. Brandt stated the proposal continues to be consistent with the town’s mater plan as a commercial use along the Maple Avenue corridor. It is an adaptive reuse of an existing vacant building, allowing the bank to provide a convenience to its customers with the use of the existing drive through. The proposal is a substantial reduction in traffic in comparison to the previous restaurant uses. The application had been presented to the Planning Commission last month and they gave a unanimous approval recommendation. Mr. Rak mentioned the memo from the Planning Commission recommending approval with a condition that the issuance be tied to Burke and Herbert Bank and Trust. There was additional information from the Town Attorney in the staff report stating to not condition the permit to an individual business, but to a bank use. Mr. Rak then asked Mr. Brandt if the drive through would be move closer to the side lot line. Mr. Brandt stated it would remain in the same location as the nature of the bank drive through use will have less of a demand in the drive through than the coffee/restaurant which had been there previously. Mr. Rak asked the parking spaces that were on the same side of the drive through previously as cars would tend to block the drive through with the previous Town of Vienna Page 4 Printed on 5/7/2021 Board of Zoning Appeals Meeting Minutes March 17, 2021 business. He continued by asking if they were installing no parking signs on that side. Mr. Brandt stated the current proposal did not have no parking signs, but the ADA striping should serve as a deterrent and patrons should not park there. Mr. Rak asked if any other Board members had questions. Mr. Dowler commented on the approved conditional use permits for the two previous businesses, KFC, and Peets Coffee. He asked if limiting the conditional use permit to bank use would be acceptable limitation. Mr. Brandt stated the proposed condition of limiting it to bank use was acceptable to the client. Mr. Brandt stated he also understood that if approved the bank use conditional use permit would supersede any previous use permits that would have run with the restaurant uses. Mr. Rak asked if staff could confirm Mr. Brandt’s interpretation of a conditional use permit. Mr. Simeck stated that in the staff report KFC, Caribou Coffee, and Peets Coffee were approved a carryout restaurant use. The financial institution CUP would change it to a bank use superseding the prior uses. Mr. Dowler asked staff if the location changed from bank use to a Dunkin Donut drive through, if the original restaurant CUP would then be able to be used again since CUP’s run with the land. Mr. Simeck stated that if another fast-food restaurant would be able to take over the use. Mr. Creed asked staff if there was a way to cancel the previous use. Mr. Dowler and Mr. Simeck both stated that the CUP runs with the land so it could not be cancelled. Mr. Rak stated that other jurisdictions have sections on abandonment of a conditional use and perhaps that would be able to be looked at with the zoning code update. Mr. Creed thanked Mr. Brandt for the presentation and felt the new location would be a better for Burke and Herbert as there would be a better traffic pattern. Mr. Rak asked for any additional questions from Board members or audience members, there were none. Mr. Creed made a motion to close the public hearing Mr. Gadell seconded the motion Motion: Creed Second: Gadell Passed: 6-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, and Mr. Dowler. 6 Ayes, 0 Nays Mr. Rak asked for a motion. Mr. Dowler made a motion to that the application for a drive through facility for bank use be approved as submitted. Mr. Creed seconded the motion Mr. Dowler stated, in support of his motion, that most banks typically have a drive through. Town of Vienna Page 5 Printed on 5/7/2021 Board of Zoning Appeals Meeting Minutes March 17, 2021 Mr. Rak agreed with Mr. Dowler stating it was a reasonable permitted use for that property. A drive through with limited expected traffic seemed reasonable and the intent of no parking on the drive through is acceptable. Mr. Rak asked if the motion was restricted to a bank use. Mr. Dowler stated the motion was for a drive through facility for bank use. Mr. Rak asked for the roll call vote. Motion: Dowler Second: Creed Passed 6-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 6 Ayes, 0 Nays. Approval of the Minutes: Mr. Rak moved to the regular meeting portion and asked for discussion or a motion to approve the minutes. There were no questions or comments, Mr. Rak then asked for a vote for the minutes. Passed 6-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 6 ayes, 0 nays. Meeting Adjournment Mr. Rak asked for a motion to adjourn. Mr. Creed motioned to adjourn the meeting Mr. Nash seconded the motion Motion: Creed Second: Nash Passed 6-0 Ayes: Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 6 ayes, 0 nays. The meeting was adjourned at 8:40 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 5/7/2021 Board of Zoning Appeals Meeting Minutes March 17, 2021 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 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 5/7/2021