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, July 21, 2021 7:30 PM COUNCIL CHAMBERS-VIENNA TOWN HALL To participate via Zoom, please register at the following link: https://www.viennava.gov/engagement-central/virtual-public-meeting-participation-during-pandemic 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 July 21, 2021 beginning at 7:30 PM with Jonathan Rak presiding as Chair. The following members were present: Manpreet Dhanjal, Robert Petersen, and Michael Gadell. Daniel Nash, George, Creed, and Robert Dowler were absent. Also attending and representing staff were Andrea West, acting CZA, and Sharmaine Abaied, Board Clerk in town hall and Cindy Petkac, Director of Planning and Zoning, and Michael D’Orazio, Deputy Director of Planning and Zoning via Zoom. BZA Resolution for Continuity of Government - July 21, 2021 Board of Zoning Appeals July 21, 2021 Resolution for Continuity of Government Mr. Rak read the Resolution for Continuity of Government with Mr. Petersen making the motion to approve and Mr. Gadell seconding the motion. Mr. Rak then asked for a roll call vote. Ayes: Mr. Petersen, Mr. Gadell, Mr. Dhanjal, and Mr. Rak. Absent: Mr. Nash, Mr. Creed, Mr. Dowler 4 Ayes, 0 Nays – motion passed. Roll Call Mr. Rak spoke on the duties of the Board of Zoning Appeals and stated that there was a requirement for a quorum of 4 members for the meeting and a town code requirement of an affirmative vote of a minimum of 4 members of the Board and not a majority of those present. Mr. Rak stated one application had chosen to defer to the September meeting and he stated any applicant present could defer if they made the decision prior to the closing of the public hearing portion of the applications. Mr. Rak asked for the roll to be called with Mr. Dhanjal, Mr. Petersen, Mr. Rak, and Mr. Gadell being present. Mr. Nash, Mr. Dowler, and Mr. Creed were absent. Public Hearings 305 Jade Ct NW - Request for a Conditional Use Permit Request for renewal of a conditional use permit from Section 18-13(k) of the Vienna Town Code for a Family Day Home for up to twelve (12) children on property located at 305 Jade Ct NW, in RS-12.5, Single-Family Detached Residential zone. Application filed by Zeinab Town of Vienna Page 1 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 Salem, business owner of Zeinab Home Daycare. Mr. D’Orazio gave a brief presentation explaining the history of the CUP. Mr. D’Orazio gave a summary of the Planning Commission memo given to the Board which expressed the concern of the neighbors about the opening of an additional day home by the same applicant on Jade CT NW. Mr. D’Orazio stated the Department of Planning and Zoning had not received an application for an additional day home on Jade Ct NW and requested the Board focus on the application for 305 Jade Ct NW. Mr. Rak asked for those who wanted to give public testimony and asked if the applicant wanted to give a presentation. The applicant declined. Mr. Suki Singh of 307 Jade Ct NW was sworn in to speak. Mr. Singh stated he had originally signed in support of the daycare, but it was prior to knowing the intent of having additional kids in a rented house across the street from the current daycare. It has not been presented, but he understood that there could be four kids without an application. Mr. Singh voiced his concerns about additional kids and the traffic on the court. Mr. Singh stated his parents and brother live on the court. He continued saying the family does take good care of the kids, but that he feared the amount of traffic and he voiced his concerns to the family. He explained that he and other families in the court have kids and children that live nearby the court come to Jade Ct to play there. Mr. Singh stated his concern for current traffic and the way he saw things going and revoked his original support of the application. Mr. Petersen asked Mr. Singh for measurement of what he describes as traffic on the court. Mr. Singh stated he could not speak to morning traffic, but he said in the evening there had been traffic in front of the house and the neighbor’s house. Recently the traffic has been more controlled, but there had been cars parked in front of his house. He stated he spoke with two individuals about their speed coming into the court. He also explained that there are children who play basketball in the court. He was concerned about the safety of the kids playing in the court when cars were coming in the court. Mr. Gadell asked Mr. Singh if he had expressed his concerns to the operator of the daycare. Mr. Singh stated he had a few weeks prior to the planning commission meeting. Ms. Rachel Orsinger of 212 Courthouse Circle SW was sworn in to speak. Ms. Orsinger stated her child has been with Zeinab Day Care for almost 2 years. She stated it was a good day care and an important resource for those living in Vienna. There was a shortage of day care during this public health emergency and a hardship for working parents. Ms. Orsinger spoke on the traffic situation and pointed out that the traffic had been more intense due to the shortened hours. This required 4-5 cars to arrive at once rather than 1-2 cars. The hours were shortened because of the new requirements by the county due to COVID. Now that the requirement for shortened hours has eased the traffic has gone back to 1-2 cars at a time. She stated that traffic may be misleading and that she too lives on a court. She stated, on Jade Ct, she did not see a large amount of traffic in comparison to the court she lives on. Ms. Orsinger stated she was surprised by the traffic concern by the neighbors as a basketball hoop is set up in the street at the entrance to the court. She felt that the parents that have the hoop must be loving and good parents and felt they would not have a basketball hoop at the entrance of the court if she felt there was a danger to their children. Town of Vienna Page 2 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 Mr. Brad Parker of 306 Jade Ct was sworn in to speak. Mr. Parker stated he had a concern about the amount of traffic on the court. He too had signed the waiver after weighing the increased traffic and wanting to support a small business. Mr. Parker stated that after he signed the waiver he had heard they were planning to open another day care at 304 Jade Ct. He said the neighbors on the court felt betrayed by that news and that it would change the quality of life on the court. He understood that there would not be a permit process for the new day care. Mr. Parker stated he filmed the traffic on three different occasions and was concerned because he had seen up to five cars around the court. Mr. Parker stated there were families from Nutley St, Lewis St, and Knoll St to teach their kids to ride bikes and for them to play ball in the court. He felt they were losing that to a commercial operation that should be elsewhere in town. Mr. Gadell asked if Mr. Parker was satisfied with the current traffic, but was concerned by the potential of future traffic. Mr. Parker stated he had wanted to support them, but he did not feel that way since their intention is for expansion. The traffic as it was would have been tolerated, but why make the sacrifice when the applicants don’t have the concern of the neighborhood at heart. Mr. Parker stated he and Mr. Singh and Mr. Singh’s brother went to the applicants after hearing they were planning to expand across the street and he felt they were dismissed. Mr. Petersen stated the previous testimony said that the home based day care would be better for a different part of town. He asked where a more appropriate part of town is. Mr. Parker stated that if they want to grow their business it should be in a commercially zoned area. He said they want to preserve their quiet cul-de-sac. Ms. Brittany Kerr, 7208 Oakland Ave Falls Church was sworn in to speak. Ms. Kerr stated they go out of their way to have the personalized care that Zeinab provides. Ms. Kerr stated traffic has been alleviated as Zeinab has had families sign up for 15 minute time slots to eliminate multiple cars in the court for the three families. Ms. Kerr stated that they live in a cul-de-sac. She stated that when neighbors would express concern Zeinab would send a text stating the neighbors are like family and they want them to be happy. Ms. Kerr stated that since they have no family locally Zeinab and her family are family to them. She said that her understanding that the second home was rented to provide care for family member with ailing health who do not live nearby. Randell Smith of 10938 Stuart Mill Ct Oakton was sworn in to speak. Mr. Smith said he felt the Salem’s have done a great job trying to mitigate the concerns of the neighbors in regards to the traffic. Mr. Smith stated on many occasions when he is dropping off or picking up there have not been other parents there. He stated he understood the flow of traffic in courts as well as understanding that there are kids who play in the neighborhoods. Mr. Smith stated that any talk of another daycare is not germane to the current application for a conditional use permit for a daycare that had been previously approved. He also stated that the area where the day care is located has a higher traffic count due to Louise Archer Elementary, Kindercare, and Happy Toddlers facility as they are all nearby. The staggered drop off and pick up, as well as the signs out front that notify kids playing has helped mitigate traffic issues. The Salem’s have also sent out messages to the parents notifying them to be cautious when entering the court because of other kids playing. Mr. Smith stated that for those reasons he felt it was offensive for those opposing the application to say they did not care about the traffic concerns. He continued stating he was speaking on behalf of the Salem’s due to a Town of Vienna Page 3 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 language barrier. He was also speaking on their behalf due to the evening the neighbors had chosen to speak with the Salem’s about the possible new day care the Salem’s son had just been a car accident and was in a coma. The Salem’s had not dismissed the neighbors, but had a family emergency. Mr. Rak asked if any Board members have any questions. Mr. Rak stated he understood that the neighbors accepted the status quo of the daycare, but there was a worry of converting the area to non-residential purposes. Mr. Smith stated that if the CUP was denied they could have four children at each of the homes, but the applicants have been clear about their intentions. The plan to extend the daycare is not in place as their intent is to have their family there. If there is a plan in place to have an additional daycare they will follow the same procedures as before of applying for a conditional use permit and appropriate licenses. Mr. Rak asked Mr. D’Orazio if he could help the Board understand about additional homes being converted to daycares and if it was a four person limit. Mr. D’Orazio stated a conditional use permit is not required for a daycare with four children, but there is a requirement for a home occupancy permit. Family day homes have to be the primary residence, the owner would need to run the daycare and two addresses could not be the primary residence. Jonathan Russell of 2704 Earls Ct Vienna was sworn in to speak. Mr. Russell stated they had their son at Zeinab’s day care for the last year. He explained their process of looking for a day care for their son and the desire for a home day care vs. large daycare. Mr. Russell stated they were drawn to the day care because it was a small operation and it was in a residential area. Mr. Russell stated the Salem’s give a tremendous care and thoughtfulness and making sure that the parents are being excessively courteous to the families and the neighborhood. Mr. Rak asked for any other testimony, there being no more testimony Mr. Rak asked for a motion to close the public hearing portion of the item Mr. Petersen made a motion to close Mr. Gadell seconded the motion Ayes: Mr. Dhanjal, Mr. Petersen, Mr. Rak, and Mr. Gadell Absent: Mr. Nash, Mr. Creed, and Mr. Dowler 4 Ayes, 0 Nays – motion passed Mr. Rak asked if there was a motion for the application Mr. Gadell made a motion that the renewal of the conditional use permit be approved with the condition of a 2 year renewal time frame. Mr. Petersen asked Mr. Gadell if he would consider changing the 2 year to a longer time frame to get a second on his motion. Mr. Gadell stated he would be open to that and extended it to 2 ½ years and stated that during COVID it was difficult to judge traffic and with the potential for an additional daycare. The families that use the daycare are vested in keeping the neighborhood safe. Mr. Gadell stated he would be willing to go up to the 3 years to be able to check in and asked Mr. Petersen if that would be amenable. Mr. Petersen seconded the motion with the condition of 36 months. Town of Vienna Page 4 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 Mr. Petersen stated he appreciated the neighbors of Jade Ct’s concern as well as the endorsement of the business by the families whose children attend the day care. Day care centers are widely recognized as an important resource for the economic and social health of the community. The comprehensive plan of Vienna encourages business licenses including home based businesses. If a second conditional use permit for an additional home day care was applied for would be considered on its own merits taking in to consideration the totality of traffic by having multiple locations. Additional locations are not germane to the decision for that evening. Because of the importance to the social and economic health of the community and home based businesses are encouraged, Mr. Petersen heartily seconded the motion. Mr. Rak asked for any additional discussion. He then stated he was persuaded by his colleagues and also by Mr. D’Orazio’s comments regarding the restrictions for the operator to open an additional day care. Mr. Rak then asked for a vote. Ayes: Mr. Petersen, Mr. Gadell, Mr. Dhanjal, and Mr. Rak Absent: Mr. Nash, Mr. Creed, and Mr. Dowler 4 Ayes, 0 Nays – motion passed 205 James Dr SW - Request for a Variance. Request for approval of a variance from Section 18-33 of the Vienna Town Code in order to construct a second story addition, beyond the rear yard setback, on the property located at 205 James Dr SW, in the RS-10, Single-Family Detached Residential zone. Application filed by Mr. Michael O’Brien, owner. Mr. Rak stated that Mr. O’Brien requested, prior to the meeting, to defer his application to the next hearing date. 131 Wilmar Pl NW - Request for a Variance Request for approval of a variance from Section 18-33.D, and Section 18-169.A.1 of the Vienna Town Code in order to construct a new single-family dwelling, in excess of the maximum permitted lot coverage of 25%, encroaching in the side yard setback of 12 feet, and minor architectural features greater than 4 feet on the property located at 131 Wilmar Pl NW, in the RS-10, Single-Family Detached Residential zone. Application filed by Mr. Anthony Pettoruto, owner. Ms. West gave a brief presentation regarding the application as well as the history of the property. The applicant was asking for 28.96% lot coverage and encroaching into the side yard setbacks. Mr. Anthony Pettoruto of 131 Wilmar Pl NW was sworn in to speak Mr. Pettoruto stated that he and his family had shared the current home since 2017. They desired to tear down the existing home and expand their living space. The intent was to build to similar size and style of other homes in the RS-10 zone. The lot coverage and side setback limits their desired usage. They inquired about addition or pop-tops, but due to the age of the home, with the angled footprint and the non-conforming front and side setback building a new home would be the best option. Working with a local architect, he stated they submitted the minimum variance needed for their desired home. Mr. Pettoruto stated they were requesting to increase the lot coverage by 293 square feet and reduce the side yard setback by 3 ½ feet. Their lot is 26% smaller than the minimum lot size required. The strict requirement of the 25 % lot coverage allows for a footprint of 1800 square feet. Town of Vienna Page 5 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 An approval would increase the footprint to 2100 square feet. The lot has a width of 50 feet and almost half of the width cannot be built on when applying the required setbacks. A wider footprint would preserve the rear yard and allow for a more efficient floorplan and a covered front porch. The new home would conform to the front BRL, would improve the side yard as currently it is 4 ½ feet from the adjoining neighbor’s property, and would have the required off street parking as it currently does not. Mr. Rak asked if about the increasing of the side yard. Mr. Pettoruto state one side of the house is 20 feet from the neighbor and the other side is 4 ½ feet. A new home would be centered. Mr. Rak asked if Mr. Rak asked if Mr. Ghitani’s side was the 20 foot side and Mr. Pettoruto said yes. Mr. Rak asked if other Board members had questions. Mr. Petersen asked for additional information from the applicant or architect regarding the design effort to keep the excess beyond the 25% to the minimum necessary. Mr. Petersen asked what would be necessary that causes an excess 4% beyond the limit. Mr. Pettoruto stated the current foot print allowed is 1800 square feet including the parking leaving 1200 square feet if building a box house. Mr. Pettoruto stated they wanted a home that fitted within the neighborhood that is aesthetically pleasing. There would not be enough bedrooms for them either. The architect may be able to elaborate more on the design. Mr. Evan Stoddard of 709 Jackson St NE was sworn in to speak. Mr. Stoddard stated the parking provides a significant amount of coverage for the driveway and garage which was the reason for the overage. The additional coverage allows for a more desirable massing. Mr. Petersen stated he was not convinced of the need to exceed the 25% lot coverage. He understood the desire for the features of the new construction and the off street parking that is the key. Mr. Petersen asked the applicant to convince the Board of the need and not the want and again that he was not convinced. Mr. Pettoruto stated that at 800 square feet they were growing out of their home which was on an RS-10 zone although their neighbors have larger lots than theirs. They did not want a big home, but was asking for the minimum with a one car garage and 2500 square foot home. When looking for builders none of the homes already designed could fit on the lot so the home would need to be custom. He stated they did go exhaust many possibilities, but all options still required parking and bringing non-conformities in to conformance. Mr. Rak asked if any audience members wished to speak on the application. Mr. Jacob Davis of 103 Ayr Hill Ave NW Vienna was sworn in to speak. Mr. Davis spoke in support of the application stating the pursuit of the home they wanted to build seemed reasonable considering some of their consideration of centering the home and not causing issues with neighbors. Mr. Eric Lawson of 119 Wilmar Pl NW Vienna was sworn in to speak. Mr. Lawson spoke in support of the application stating they live a few house down from the applicants who live in an 800 square foot house. He understood they have a smaller lot but felt a small variance would prevent having a block style house. The homes on the street are similar with the exception of 109, built per the code requirements and the home is a Town of Vienna Page 6 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 3-story rectangular with a single garage. Mr. Lawson felt a home that was built with a variance would look more like a single family residential and also felt the applicants were only asking for the minimum necessary above the zoning requirements. The narrow lot with only 12 feet on either side leaving 26 feet in the center to build on would, in his opinion, qualify for a variance. This new build would alleviate street parking on the road. Mr. Chris Camacho of 124 Wilmar Pl NW Vienna was sworn in to speak. Mr. Camacho spoke in support of the application. He stated they had a tear down and rebuild home and there are other homes on the street that have been tear downs and rebuilds as well. There is a parking issue on the street so the build would help alleviate the parking. Mr. Camacho stated they had been surprised at how small the house was and how the applicants were able to “make do” with that size home. He continued stating due to the size of the home and the shape and size of the lot they supported the variance and wanted for the applicants to build the home of their dreams. Mr. Rak stated there was a fair amount of testimony that the zoning requirements would interfere with the desired design. The Board has a high standard of review per the state and town code for granting a variance. There needs to be four members of the Board of Zoning Appeals who are persuaded that the strict conformance with the zoning ordinance creates an undue hardship. Mr. Petersen expressed questions about whether that has been met with the lot coverage. Mr. Rak explained to Mr. Petteruto that it was his choice to move forward, but he has the opportunity to defer his application to reconsider the lot coverage reduction or wait for a full membership of the Board in September. Mr. Petteruto stated he would like to defer until December. Mr. Rak asked the Board if they had any objections with Mr. Petteruto deferring to September to potentially consider changes to the application. Mr. Gadell asked Mr. D’Orazio what the RS-10 lot size was due to the comment about the property being an undersize lot in the RS-10 zone. Mr. D’Orazio referred the question to Ms. West, but stated the minimum lot size is typically 10,000 square feet. Ms. West confirmed that 10,000 square feet is the minimum requirement. Mr. Gadell asked if it was an undersized lot. Ms. West stated it was undersize as the lot size was 7, 375 square feet. Mr. Petesen asked if the staff could provide, at the September meeting, information about nearby lots on Wilmar Pl so the Board would know the dimensions of the various lots of adjacent and adjoining lots or all the lots on Wilmar Pl for the Board to take into consideration whether the applicant has a difficulty with the shape or size of the lot that is not shared by others on Wilmar Pl. Ms. West stated that would be provided in her staff report. Mr. Rak asked for the Board members asked for vote to accept the deferral Ayes: Mr. Dhanjal, Mr. Petersen, Mr. Rak, and Mr. Gadell Absent: Mr. Nash, Mr. Creed, and Mr. Dowler 4 Ayes, 0 Nays 1001 Mountfort Ct SW - Request for a Variance Request for approval of a variance from Section 18-17(a) of the Vienna Town Code to construct a fence, in excess of the maximum permitted height on the property located at 1001 Mountfort Ct SW, in the RS-16, Single Family Detached Residential zone. Application filed by Mr. Michael Jensen & Mrs. Kelly Jensen, owners. Ms. West gave a brief presentation regarding the request for the variance as well as the Town of Vienna Page 7 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 history of the property. Mr. Michael Jensen of 1001 Mountfort Ct SW was sworn in to speak. Mr. Jensen stated that he and his wife had moved from Colorado and opened their businesses in Vienna. He stated their home had been a hoarder home with an overgrowth of trees and inoperable cars that needed to be removed. The first night in the home their dog jumped their short fence and was gone for the day. Mr. Jensen continued stating he was a US Special Operations veteran having served overseas and retired from active duty. Ms. Jensen had obtained the dog for Mr. Jensen to help with certain disabilities that came from having served in the military. Mr. Jensen stated they were asking for a variance of a 6-foot fence for ADA purposes and the undue hardship of a 3-4 foot fence. The dog, who is part of the family, can escape the shorter fence causing a hardship to the family. Working dogs are not pets but are working animals providing a task under ADA requirements. Mr. Jensen also stated everyone deserves a reasonable amount of privacy and stated it was nice to have an enclosed lot for his young children. He also stated on their first night there was person who was found urinating in the backyard. They had also found broken bottles, needles, and unused drugs. The fence allows for improvements for the area. Mr. Rak asked if the fence had been installed without a permit. Ms. West stated that was correct. The zoning enforcement officer provided the option to remove the fence and install a fence that was in compliance or they could request a variance. Mr. Rak asked Mr. Jensen if they had a contractor install the fence. Mr. Jensen stated it was one of the house contractors and they did that because they couldn’t wait. When going through ADA laws he felt they would be able to have a variance. He said they were told to go through the fence permit application, and he said with all that was happening he did not and apologized for not applying. Mr. Petersen said that he believed that the Board, when considering the variance, is required to look at the property, not the occupants of the property when considering a possible variance. The variance has to do with the property not the current occupants. Mr. Petersen asked for confirmation or clarification regarding his belief about variances. Ms. West stated criteria are always the same for fence requests. The applicant is providing the information they wished to provide and the criteria for hardship should be used when making a determination. Mr. Jensen stated the Virginia State Code 15-2-2309.2 and 51.4-44, from his understanding, allows for a variance to be granted due to ADA need based hardship. Mr. Jensen stated there was a variance granted for basketball court in Fairfax County for a child with autism. Ms. Kelly Jensen of 1001 Mountfort Ct SW was sworn in to speak Ms. Jensen added that the property does not detract from the visibility. Cars from Marshall Rd and Mountfort Ct can see where they are going. Mr. Jensen stated the fence did not impede traffic for the First Baptist Church that is behind their home. Mr. John Hildebrand at 1000 Mountfort Ct SW was sworn in to speak. Mr. Hildebrand stated he has lived in Vienna for 40 years in two different locations. Mr. Hildebrand stated the new home is an amazing upgrade to the neighborhood and town. Mr. Jensen is a veteran with special needs whose service dog jumped the rickety fence that was Town of Vienna Page 8 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 around the house. Mr. Hildebrand stated Mr. Jensen is a rule follower so he felt he would not have installed the fence if he had known about the permit. The fence was installed, and Mr. Hildebrand felt it was a gorgeous fence with the additional 2 feet meeting the needs of the family. The fence doesn’t cause issues with visibility or safety issue. The fence doesn’t dwarf the size of the lot but fits the size of the lot. Mr. Hildebrand stated there were homes further down on Marshall Rd that have fences the same height or possibly higher at the rear of their properties. He felt it was not out of character for the neighborhood to have that fence and he supported the application. He continued stating there was support by neighbors for the Jensen’s. Mr. Rak stated 6-foot fences are allowed in the town. Ms. West stated that was correct, but it must be behind the principal structure, the rear yard with shared property lines, but not on corner side yards as it faces the right of way. Mr. Robert Reynolds of 1003 Frederick St SW was sworn in to speak. Mr. Reynolds thanked Mr. Jensen for his service and stated his testimony was not personal. He stated no permit was requested or issued for the fence. Although he is in favor of development of property in Vienna, he having a new home on a corner with a 4 foot fence. He did not want contractors to start a precedence of building fences and then going to get a permit after the fact. It has been stated that the fence is safe, but there are 3 places of concern: the cross walk at Mountfort, the cross walk at Ware and the church driveway. They are all heavily trafficked areas for children going to Marshall Rd Elementary School. Many kids and families use the church parking lot and cut through the driveway. Mr. Reynolds stated twice he’s seen people who drove up the curb as well as pulling kids away from being hit by cars from people backing out. He stated he understood the reasons for the fence, but felt it was a bad precedence to set and he stated he disagreed with the variance. Mr. Rak asked Mr. Reynolds for the safety concern in reference to the fence height. Mr. Reynolds stated the fence comes out to the sidewalk with a driveway that to the church that is directly behind it. The staff photos do not show the crosswalks or the driveway. Mr. Rak asked for an aerial view from Ms. West. Mr. Rak asked if the driveway was to the rear of the property. Ms. West stated the driveway for the church was the asphalt area to the rear of the property. Mr. Reynolds pointed out the crosswalks at Ware and Mountfort, reiterating the 3 areas of his concern. Mr. Rak asked if the concern was that driveways could not see people coming. Mr. Reynolds stated that was correct. Mr. Jensen asked for the aerial view to be brought up again pointing out that the fence does not encroach on the crosswalk and stated the 6-foot fence doesn’t impede a person’s vision whereas the 25-30 foot tall trees that are there can obscure a person’s vision. Mr. Gadell stated that typically a CUP is attached to a property, but in the past CUPs have been attached to businesses and not a property. Mr. Gadell asked if a CUP is allowed to be attached to an individual making the CUP leave with them. Mr. Rak corrected and stated it was a variance application. Ms. West stated that there is a provision for variances to be granted with American with Disabilities Act. The variance would last for the length of time a person is occupying the property versus a standard variance that stays with the property in perpetuity. There is a slightly different provision as the variance would expire when the person benefitting from it was no longer in need of the modification or improvements to the property provided by the variance. Mr. Rak stated he was confused by the standard of this variance as a variance is determined by an undue hardship related to the property not to the occupant. If there is a Town of Vienna Page 9 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 state or town code section that needs to be used to make the decision the Board needs to be educated before making a decision. Ms. Petkac stated that state code section 15.2-2309 subsection 2 starting in the second of 4 paragraphs “…Any variance granted to provide a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability may expire when the person benefited by it is no longer in need of the modification to such property or improvements provided by the variance, subject to the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.), as applicable.” Mr. Rak stated he understood that the ADA was more prescriptive and asked Ms. West if she had the analysis. Ms. West stated she did not have the analysis. Mr. Petersen stated that earlier in the evening excellent advice and guidance was given to the applicant at Wilmar. He also appreciated Mr. Gadell’s effort to find an agreeable rationale for the variance for the property. Mr. Petersen asked if he would consider advising deferring the application with the full Board as well as additional information to guide a possible decision. Mr. Rak stated he was going to make that recommendation but was more inclined to hear a motion to defer not being fully knowledgeable or applied that section of the ordinance. Mr. Rak asked Mr. Jensen is he had an issue with the Board deferring to the September meeting to be able to better understand the relationship to the disability and the variance. Mr. Jensen stated he preferred to settle the matter now, but was not against meeting in September. He stated he believed the law supported their request with precedence from previous cases and the code of Virginia. Mr. Rak stated it was within the Board discretion to defer whether or not the applicant agrees and stated the result would be a more considered and thoughtful decision on the case. Mr. Rak stated he would entertain a motion from the Board to defer to the September BZA meeting. Mr. Rak asked for a motion to close the public hearing Mr. Gadell made a motion to closed Mr. Petersen seconded the motion. Ayes: Mr. Dhanjal, Mr. Petersen, Mr. Rak, and Mr. Gadell Absent: Mr. Nash, Mr. Creed, and Mr. Dowler 4 Ayes, 0 Nays Mr. Rak suggested deferring, so the Board has an opportunity to understand the legal obligations for granting the application. Mr. Rak stated that the Board could also vote on the request or a deferral. Mr. Petersen stated he felt this was beneficial to the applicant as he was not convinced the variance should be granted. The Board does want to give the applicant every opportunity to present the correct and strongest case possible when requesting a variance. Mr. Gadell made a motion to defer the item to the September meeting Town of Vienna Page 10 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 21, 2021 Mr. Dhanjal seconded the motion Ayes: Mr. Gadell, Mr. Petersen, Mr. Dhanjal, and Mr. Rak Absent: Mr. Nash, Mr. Creed, and Mr. Dowler 4 Ayes, 0 Nays. Approval of the Minutes: There were no minutes to review. Meeting Adjournment Mr. Rak asked for a motion to adjourn. Mr. Petersen motioned to adjourn the meeting Mr. Gadell seconded the motion Ayes: Mr. Petersen, Mr. Rak, Mr. Gadell, Mr. Dhanjal Absent: Mr. Nash, Mr. Creed, and Mr. Dowler 4 ayes, 0 nays – motion passed The meeting was adjourned at 9:31 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 11 Printed on 9/17/2021 Board of Zoning Appeals Meeting Minutes July 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 12 Printed on 9/17/2021