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 19, 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 May 19, 2021 beginning at 7:30 PM with Jonathan Rak presiding as Chair. The following members were present: Daniel Nash, Manpreet Dhanjal, George Creed, Robert Petersen, Robert Dowler, and Michael Gadell. Also attending and representing staff were Frank Simeck, CZA, and Sharmaine Abaied, Board Clerk. BZA - Resolution for Continuity of Government - May 19, 2021 Board of Zoning Appeals May19, 2021 Resolution for Continuity of Government Mr. Rak read the Resolution for Continuity of Government with Mr. Nash seconding the motion. Mr. Rak then asked for a roll call vote. Ayes: Mr. Nash, Mr. Dhanjal, Mr. Petersen, Mr. Rak, Mr. Gadell, Mr. Dowler, Mr. Creed. 7 Ayes, 0 Nays – motion passed. Roll Call Mr. Rak introduced the newest Board Member, Mr. Manpreet Dhanjal. Mr. Rak asked for the roll to be called with Mr. Nash, Mr. Dhanjal, Mr. Petersen, Mr. Rak, Mr. Gadell, Mr. Dowler, and Mr. Creed present. Regular Business 416 Council Dr NE - Request to reconsider for approval of a variance from Section §18-49 of the Vienna Town Code in order to construct a deck beyond the required rear yard setback line on the property located at 416 Council Dr., NE; in the RTH, Townhouse zoning district. Application filed by Mrs. Mara Bowater in behalf of Mr. Aurelio Perrone & Mrs. Barbara Perrone, owners. Mr. Rak stated this agenda item had been heard at the April 2021 BZA meeting and there had been a motion to approve, but it had failed. It had been brought to Mr. Rak’s attention that the final version of the statement of justification had not been distributed to the Board. It was recommended that the item be brought to the Board to reconsider. A Board member from the prevailing side of the vote, members who opposed the motion to approve, would be able to move to reconsider the item. Town of Vienna Page 1 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes May 19, 2021 Mr. Dowler asked for citations regarding the motion to reconsider. Mr. Creed stated the reconsideration is based on Roberts Rules of Order. Mr. Creed also stated his concern about the reconsideration as he was not sure if the Fairfax Circuit Court recognized those rules. Mr. Rak stated the Town Attorney, Mr. Briglia, stated the rules of procedure for the Towns Boards and Commissions are Roberts Rules of Order and the reconsideration is part of those rules. Mr. Dowler asked when the original order would become final and would an item be allowed to be reconsidered at any time. Mr. Rak stated, he was not certain if the effective date was from the date of the vote or the date of the signing of the order. Mr. Dowler stated that orders run from the date they are signed, but wanted to know when it would end. Mr. Rak stated that the advice given from the Town Attorney was that it would be permissible for the Board to reconsider if the motion came from a member from the prevailing side which were the members who opposed the motion. Mr. Creed stated a concern about the reconsideration and asked if it would then be a public hearing and if the members that were not present for the previous hearing would be able to hear the item and vote. Mr. Rak asked Mr. Simeck if the Town Attorney stated there would be the requirement of a public hearing. Mr. Simeck stated it would not be a public hearing, it would just be a vote on a motion to reconsider. Mr. Gadell asked if the applicant would have grounds to appeal if the Board decided not to reconsider the application. Mr. Rak stated he was not sure of the answer to that question. Mr. Dhanjal stated he felt he should abstain from the item as he wasn’t present for the previous meeting. Mr. Petersen stated he was prepared to make a motion. Mr. Dowler asked if there would be a new hearing if everyone voted in favor of a motion to reconsider. He also asked if those members that were not present for the first hearing would be able to vote if the item was to be reconsidered. Mr. Rak stated if the motion to reconsider prevailed there would not a be a public hearing, but that the Board would be able to make a motion to approve or deny with all members being able to participate. Mr. Dowler stated that it was the same original evidence and recognizing the submission of the one neglected document. Town of Vienna Page 2 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes May 19, 2021 Mr. Simeck stated the applicant felt the revised justification may clear up any question of a financial component as it was eliminated from the revised justification statement. Mr. Simeck gave a summary of the justification statement and the differences in the two statements. Mr. Petersen stated he was ready to make a motion. He continued stating that Ms. Bowater was entitled to the Board making a decision based on a full and complete application. There was not fault by the applicant for the incomplete packet given to the Board members for the April 2021 hearing. Mr. Petersen then moved that the Board reconsider the application for a deck as filed for the residence at 416 Council Dr NE. Mr. Gadell seconded the motion. Mr. Dowler stated his concern regarding the reconsideration as he felt applicants should appeal the decision. He was also concerned because there were two members missing. Mr. Dowler felt anytime a decision was not in the applicant’s favor they would just try again. Mr. Dowler stated there was no additional information in the justification statement and felt the monetary issue did not decide the case as the motion was based on the situation of the house and the reason or unreasonable use of the property. Mr. Petersen appreciated Mr. Dowler’s thoughts on the reconsideration, but stated the point was that applicants are entitled to have the Board consider a full and complete application. The application was incomplete at no fault of the applicant. Mr. Petersen stated the fact that there was a board member missing and one seat was vacant at the April meeting were not germane to reconsider the application. Mr. Creed stated he commented about the financial concern, but that it was not his primary concern. He stated he did not support the application of the neighbor and did not support this application either. Mr. Simeck stated the item failed at the April 2021 meeting for four reasons and the first two referenced a financial aspect. The final justification statement that eliminates the reference to the value is what’s before the Board. Mr. Rak asked for a roll call vote for the motion by Mr. Petersen to reconsider the item and the second by Mr. Gadell Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Gadell, and Mr. Dowler Nays: Mr. Creed 6 Ayes, 1 Nays – motion passed Mr. Dowler made a motion to approve the request for a variance Mr. Gadell seconded the motion Mr. Rak asked for discussion Mr. Petersen reiterated that he could not support the motion because the applicant could build a deck that would conform to the required setback under the code with reasonable use of the property. Not being able to build a deck to the extent the applicant wishes does not deprive the applicant of reasonable use of the property. Town of Vienna Page 3 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes May 19, 2021 Mr. Nash stated he had supported the motion for the variance for the adjacent property and supports the variance request for the same reasons. Mr. Creed stated he didn’t believe that there was a hardship and agreed with Mr. Petersen’s determination that they could build within the eight feet. He understood that it may look odd due to the other decks, but that was not a decision for the BZA to make. Mr. Rak stated he was persuaded that the prior Board and the current Board approved similar variances. Although the Board is not required to be consistent, he would vote in favor of the variance. Mr. Gadell stated he would vote in favor for consistency purposes and because of the 1990 ruling and the setback lines. Mr. Petersen stated that the Board does not establish precedence, but that each case is decided on its own merits. The Board does need to be consistent in its correct application of the Vienna zoning laws. Ayes: Mr. Nash, Mr. Rak, Mr. Gadell, and Mr. Dowler Nays: Mr. Petersen, Mr. Creed Abstain: Mr. Dhanjal 4 Ayes, 2 Nays, 1 Abstain – motion passed Public Hearings 124 Park St SE - Conditional Use Permit Request approval of a conditional use permit from Section §18-74.E and §18-210.P of the Vienna Town Code for an animal veterinary hospital use at 124 Park Street SE, unit 100 in the C-1 Local Commercial zone. Application filed by Sergio Sur of the Princeton Design PLLC on behalf of Veterinary Surgical Centers Rehabilitation, LLC. Mr. Simeck gave a presentation regarding the request for the conditional use permit for the animal veterinary hospital as well as the history of the building and site. Mr. Creed asked if the CUP for the basement was separate from the CUP being heard, which was for the first floor. He then asked if the total of 12 employees was for both floors. Mr. Simeck stated it was a separate CUP and said he would have the applicant address the question regarding the number of employees. Mr. Sergio Daniel Sur of 2 Cardinal Park Dr. Suite 202-C Leesburg was sworn in to speak. Mr. Sur stated the 12 employees are for the first floor only. Mr. Sur stated that the CUP request was to provide care for patients with neurologic conditions and treatment as well as MRI. When the doctor began the business in 2013 the intention was to grow at that facility and provide better service. There are no modifications, or alterations being made to the exterior or the parking. The parking use will be improved for parking as the previous business had the max amount of parking, but the proposed use will reduce the parking to 17 spaces. The facility is less than 5,000 square feet for animal veterinary services, radiology and imagery center. Town of Vienna Page 4 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes May 19, 2021 Mr. Rak asked the Board if they had any questions. Mr. Dowler asked for the relationship between the veterinary operation in the basement and the one proposed for the first floor. Mr. Sur stated the owner was the same. Mr. Dowler asked if the applicant for the surgical center on the first floor was different. Mr. Sur stated that was correct and that it was Dr. Anke Langenbach. Mr. Rory Caracciolo Jr. of 124 Park St SE Suite 100 Vienna was sworn in to speak. Mr. Caracciolo stated Dr. Langenbach had been the sole owner, but Dr. Taylor and Mr. Caracciolo are business partners with the same business entity. Mr. Rak asked if there were any other questions or comments by anyone in the audience. Mr. Sur stated that with approval of the proposed application they would provide 100% ADA compliance. The renovation would not change the noise level of the facility, and the use would remain the current use of business for professional services. There will be no additional glare or light to adjoining properties, as well as no additional signage. Mr. Sur continued stating there would be no additional site changes, but would only have interior tenant space modifications only. Mr. Rak asked if any audience members wanted to speak, there being none he asked for a motion to close the public hearing Mr. Petersen made a motion to close the hearing Mr. Gadell seconded Ayes: Mr. Nash, Mr. Rak, Mr. Gadell, Mr. Dowler, Mr. Petersen, Mr. Creed, and Mr. Dhanjal 7 Ayes, 0 Nays - motion passed Mr. Rak asked for motion for the CUP Mr. Petersen made a motion to approve a Conditional Use Permit for animal hospital use at 124 Park St SE Suite 100 as filed by Mr. Sergio Sur on behalf of Veterinary Surgical Center, LLC. Mr. Creed seconded the motion. Mr. Petersen stated it was an important improvement in Vienna, providing valuable healthcare to Vienna residents and residents in nearby communities. There are no detrimental effects to public welfare or to properties in the area. There will be no exterior modifications, but improvements with less parking pressures and green improvements in the proposed design. There is no need for any restrictions on the CUP. Mr. Petersen stated it was a reputable operation with a good track record and anticipated no problems arising. Mr. Creed stated there would be soundproofing in the interior of the building and the other tenants were fully supportive of the application. Mr. Rak asked for the roll call vote Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, and Mr. Town of Vienna Page 5 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes May 19, 2021 Dowler. 7 Ayes, 0 Nays - motion passed Approval of Minutes: Mr. Rak asked for a motion to approve the minutes Mr. Creed made a motion to approve as submitted Mr. Dowler seconded the motion Ayes: Mr. Dhanjal, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, and Mr. Dowler. Abstain: Mr. Nash 6 Ayes, 0 Nays, 1 Abstain Meeting Adjournment Mr. Rak asked for a motion to adjourn. Mr. Nash motioned to adjourn the meeting Mr. Dhanjal seconded the motion Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Creed, Mr. Rak, Mr. Gadell, and Mr. Dowler. 7 ayes, 0 nays – motion passed The meeting was adjourned at 8:43 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 9/17/2021 Board of Zoning Appeals Meeting Minutes May 19, 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: • Hear and decide appeals from any order, requirement, decision or determination of the Zoning Administrator. • 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 • Hear and decide applications for interpretation of the Zoning District Map when there is any uncertainty as to the location of the boundary line. • 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 9/17/2021