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, April 21, 2021 7:30 PM COUNCIL CHAMBERS-VIENNA TOWN HALL 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 April 21, 2021 beginning at 7:30 PM with Jonathan Rak presiding as Chair. The following members were present: George Creed, Robert Petersen, Robert Dowler, and Michael Gadell. Daniel Nash was absent. 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 - April 21, 2021 Board of Zoning Appeals April 21, 2021 Resolution for Continuity of Government Mr. Rak read the Resolution for Continuity of Government with Mr. Creed seconding the motion. Mr. Rak then asked for a roll call vote. Ayes: Mr. Petersen, Mr. Rak, Mr. Gadell, Mr. Dowler, Mr. Creed. Absent: Mr. Nash 5 Ayes, 0 Nays – motion passed Roll Call Mr. Rak asked for the roll to be called with Mr. Petersen, Mr. Rak, Mr. Gadell, Mr. Dowler, and Mr. Creed present. Mr. Nash was absent. Public Hearing 416 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 416 Council Dr. NE in the RTH, Townhouse zoning district. Application filed by Mara Bowater on behalf of owner Aurelio Perrone. Ms. Mara Bowater of 2406 N. Park Ct Dunn Loring was sworn in to speak. Ms. Bowater represented her parent’s, Mr. and Mrs. Aurelio Perrone, application. The proposed deck would be made of composite wood with stairs and black aluminum balusters. The deck size would be 16x13; with the stairs it would be 20x13. The right window would be replaced by a sliding door which was approved by the Board of Architectural Review. The proposed deck would have a stone patio beneath it and a fence, approved by the Board of Architectural Review, will also be installed. The Council Square HOA has approved the project as well as adjacent neighbors. Ms. Bowater stated she was requesting a 5 foot Town of Vienna Page 1 Printed on 6/17/2021 Board of Zoning Appeals Meeting Minutes April 21, 2021 variance to allow for a 16x13 deck rather than a 16x8 deck. Ms. Bowater said that the hardship was based on the zoning ordinance approved in the 1980’s. The request is in keeping of other requests in past that had been approved and Ms. Bowater asked that this request be approved as well. Mr. Dowler asked if the stone patio required a variance. Mr. Simeck stated the patio would not need a variance. George Hoadley, 406 Council Dr NE, was sworn in to speak. Mr. Hoadley stated the background for Council Square dating back to 1979. The Town Council and Planning Commission worked with the developer to build on a small parcel of land. Variances and waivers were required to meet the town’s code for the RTH zone resulting in very little common ground. Council Drive was to mirror Council Court, but at the time the developer passed away with the project taken over by the bank. A new developer finished Council Drive utilizing reverse frontage to meet setbacks. 416 Council Dr. did not receive a variance for the rear setback until occupancy. In 1992 a Planning Commission sub-committee met with 8 town home communities to discuss hardships. Mr. Hoadley discussed comments from former zoning administrator, Greg Hembree about Council Square and also stated that the owners gave up use of 25% of their property incurring a setback hardship. Mr. Hoadley stated many townhomes on Council Dr. and Council Ct. have been granted variances for decks between 14 and 16 feet from the rear property line. Mr. Hoadley stated he was granted a variance due to hardship of reverse frontage. 2002 the rear deck setback changed to 28 feet for new construction or properties with no reverse frontage. Mr. Hoadley stated he felt the 18-49 code prior to the 2002 amendment should apply to Council Square since Council Square was built before 2002. Mr. Hoadley discussed the difference between the old and new parking requirements for 4 bedroom town homes. Mr. Hoadley stated the neighbors of 416 Council Dr. support the variance. He also discussed the differences between the townhomes and the single family homes on Ayr Hill. He continued stating they lose 10 feet of setback giving less than 40 feet as a hardship. For all those reasons Mr. Hoadley stated they should receive their variance. Mr. Lazaro Andino of 414 Council Dr. NE was sworn in. Mr. Andino stated he stated he was in support of the variance. Last month a variance was approved for his townhome. The Perrones are elderly couples that need space to get outside. He reiterated that he supported the variance. Mr. Creed asked Mr. Simeck if any of the items Mr. Hoadley mentioned did in fact take place. Mr. Simeck stated Mr. Hoadley was correct about the modifications of requirements granted for a number of the 30 unit townhome dwelling. Lot 38-A, 416 Council Dr. NE, was not included with the reversed front and rear causing the BZA to grant a variance for the rear yard setback in 1984 to allow an encroachment at 35.9. Mr. Dowler asked if the 28 foot setback was across residential and townhomes. Mr. Simeck stated it was only for townhomes, and for single family residential it was 25 feet. Mr. Rak asked if Mr. Greenspun wanted to speak and he said he was there for questions. Town of Vienna Page 2 Printed on 6/17/2021 Board of Zoning Appeals Meeting Minutes April 21, 2021 Mr. Dowler asked if a townhome was 28 foot rear yard setback for decks and if residential was 25 feet. Mr. Simeck said yes. Mr. Dowler then stated it was more restrictive for townhomes. Mr. Simeck stated said it was less restrictive, because you cannot cause the reduction of less than that. Mr. Creed made a motion to close the public hearing Mr. Greenspun asked if he could speak Mr. Rak stated there was already a motion Mr. Gadell seconded the motion. Mr. Petersen stated he opposed the motion as he wanted to hear what Mr. Greenspun had to say. Mr. Dowler agreed with Mr. Petersen. Mr. Rak asked Mr. Creed if he objected, Mr. Creed did not object. Mr. Jacob Greenspun of 240 Church St. NE was sworn in to speak. Mr. Greenspun stated he wanted to clarify that townhomes cannot encroach more than 28 feet from the property line, not 28 feet from the house. Likewise a single family home is 25 feet from the property line, not 25 feet from the home. Mr. Rak asked for questions. There being none he asked for a motion to close the public hearing Mr. Creed made the motion to close the public hearing Mr. Gadell seconded the motion Ayes: Mr. Petersen, Mr. Rak, Mr. Gadell, Mr. Dowler, Mr. Creed. Absent: Mr. Nash 5 Ayes, 0 Nays – motion passed Mr. Dowler made a motion to grant to variance Mr. Gadell seconded the motion Mr. Dowler stated, in support of the motion, the applicants situation with the house is cause for unreasonable restriction on use of the property. The back of the house is closer to the rear property line than other house in the area. There is inadequate building space for a deck to conform to the town code. Townhomes are limited in where they can put the deck, at the back of the house. Residential homes have a wider area to put the deck. The limitation as to where the deck can be placed as well as the town home being deep in the lot than other townhomes is overly restrictive to allow any reasonable use of a deck. This amounts to an unreasonable restriction and the application should be granted. Mr. Creed, with his 30 years’ experience in real estate, stated that a majority of town homes always abutted other properties and is normal when buying a townhome. Mr. Petersen stated he could not support the motion. After reviewing the written Town of Vienna Page 3 Printed on 6/17/2021 Board of Zoning Appeals Meeting Minutes April 21, 2021 submission and hearing testimony he was unable to find an unreasonable restriction on the use of the property by requiring owner to adhere to the ordinance as written. The Board can interpret the ordinance, but we cannot change ordinances and apply one way for townhomes and another for single family homes. In the written submission it states the importance of enhancing the value of the property by being permitted to have a deck constructed that would exceed the setback requirements. The Boards role is not to enhance property values, it is to apply the ordinances of the town, and when found unreasonable to a particular property to consider a variance. Mr. Petersen stated he did not see how a deck conforming to the zoning ordinance would result in inadequate living space. A deck adhering to the ordinances would provide a reasonable solution to the property owners. Mr. Gadell supported Mr. Dowler’s motion and stated if the townhome was placed properly for the front setback, it would have given the length at the rear making the variance unnecessary. Mr. Gadell then stated all variances stand on their own, but many have been granted in that area as recent as last month. The Board should pass the variance as well. Mr. Rak asked what the depth the deck would be if it complied with the town code. Mr. Simeck stated it would be 7.7 feet from the townhome. Mr. Rak asked if they were requesting 13 feet. Mr. Simeck said the overall deck was 13x20 and the encroachment would be 5.3 feet. Mr. Rak stated he would support the motion. The hardship was a close call to determine, but was persuaded by what Mr. Gadell stated with consistency in how variances are granted and several have been granted with similar circumstances. The previously approved location of the house, with a reduced rear yard has an impact on the hardship. The 13 foot deck is not extreme in terms of the size. He then stated he would be voting in support of the motion. Mr. Creed stated he did not support the motion last month and did not see a hardship. Looking at the current application the decision made last month was correct and will not support this motion. Stating of the financial hardship cannot be considered with a variance application. Mr. Dowler asked if there needed to be a positive vote of 4 people. Mr. Rak stated the town code stated a concurring vote of 3 members shall be necessary to decide in favor. Mr. Creed stated that had changed. Mr. Dowler stated the code states it’s a majority of the number of members. There had been fewer members in the BZA, but the number of members increased so the number of votes had to increase, and the state code would supersede. Mr. Rak stated he had an outdated copy of the ordinance. Mr. Dowler stated he thought the town code may still say three, but the state codes says a majority of the membership, which is 4. Mr. Simeck stated that was correct and read the portion of the agenda confirming it should be 4 Mr. Creed stated they only have 6 appointed members, and Mr. Dowler stated that it would still need to have 4 votes. Mr. Rak asked for a roll call vote. Ayes: Mr. Dowler, Mr. Gaell, Mr. Rak Nay: Mr. Creed, Mr. Petersen 3 Ayes, 2 Nays – motion failed Absent – Nash Town of Vienna Page 4 Printed on 6/17/2021 Board of Zoning Appeals Meeting Minutes April 21, 2021 Mr. Rak stated the basis for the denial of the variance will be the concerns articulated by Mr. Petersen and Mr. Creed Approval of the Minutes Mr. Rak moved to the regular meeting portion of the meeting and asked for discussion or a motion to approve the minutes. Mr. Creed asked for Mr. Raks last name to be added to the first paragraph of the minutes. Mr. Creed made a motion to approve with the correction Mr. Gadell seconded the motion Ayes: Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler, 6 ayes, 0 nays. Absent: Mr. Nash 5 Ayes, 0 Nays – motion passed There was discussion of a potential CUP for the next month’s meeting. Meeting Adjournment Mr. Rak asked for a motion to adjourn. Mr. Dowler motioned to adjourn the meeting Mr. Creed seconded the motion Ayes: Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, Mr. Daly, Mr. Dowler 5 ayes, 0 nays – motion passed The meeting was adjourned at 8:14 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 5 Printed on 6/17/2021 Board of Zoning Appeals Meeting Minutes April 21, 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 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 grant of any appeal from a decision by the Town’s Zoning Administrator requires an affirmative vote of the majority of the entire membership of the Board. The grant of a Conditional Use Permit or variance requires an affirmative vote of the majority of those present and voting. 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 6 Printed on 6/17/2021