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 Tuesday, September 14, 2021 7:30 PM COUNCIL CHAMBERS-VIENNA TOWN HALL Electronic Participation Roll Call 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 September14, 2021 beginning at 7:30 PM with Jonathan Rak presiding as Chair. The following members were present in Council Chambers: Manpreet Dhanjal, and Jonathan Rak with the following members participating via Zoom: Daniel Nash, Robert Petersen, George Creed, Michael Gadell, and Robert Dowler. Also attending in person and representing staff were Andrea West, acting CZA, and Sharmaine Abaied, Board Clerk in town hall and Michael D’Orazio, Deputy Director of Planning and Zoning via Zoom. Mr. Rak called the meeting to order and asked for the clerk to call the roll with all members being present Mr. Rak stated there was an understanding that the Board would be meeting in person, but the Town Council has authorized virtual meetings by extending the Continuity of Government. BZA Resolution for Continuity of Government - September 14, 2021 Board of Zoning Appeals September 14, 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. Creed seconding the motion. Motion: Petersen Second: Creed Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed. Public Hearings Mr. Rak directed those audience members present to the back of the agenda which gave a description for the powers and duties of the Board of Zoning Appeals. Applicant requests deferral of public hearing for request for a conditional use permit for a drive-through facility for Chase Bank on property located at 315 Maple Avenue East, in the C-2 General Commercial zone. Application filed by Michelle Rosati of Town of Vienna Page 1 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 Holland and Knight on behalf of Chase Bank Request for approval of a conditional use permit from Section §18-88.F and §18-210.II of the Vienna Town Code for a drive-through facility for two drive through ATM’s located as 315 Maple Ave E, in the C-2, General Commercial zone. Application filed by Michelle Rosati of Holland and Knight on behalf of Chase Bank. Mr. Rak stated the applicants wished to defer the request until the October 2021 meeting to make site plan changes to address the Planning Commission comments. Mr. Rak asked for a motion to defer. Mr. Petersen made a motion to agree to a deferral. Mr. Nash seconded the motion. Motion: Petersen Second: Nash Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 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. Ms. West gave a brief presentation of the request for a second story addition over the existing garage located at 205 James Dr SW. Mr. Michael O’Brien, 205 James Dr SW, was sworn in to give his testimony. Mr. O’Brien stated he had deferred his application and that he had three reasons for his variance to be approved. First, the dimensions of his lot makes it difficult to build any other structures and is currently out of compliance with the rear setback. The home faces James but attempting to turn the house to face Cottage it would still not meet the setbacks. Second, the proposed changes would not take up any additional space on the property as it would be built within the current footprint of the structure. They had purchased the home, eleven years ago, in its current state have made a few façade changes. Mr. O’Brien stated his understanding of bringing something out of compliance into compliance when building but stated if he attempted to tear down his garage and build new to bring the garage into compliance with the rear setback it would not be in compliance with the front setback. The third reason for the addition, Mr. O’Brien stated, was for his mother as she had been diagnosed with Parkinson’s and their family was the only family with the ability to take care of her as her disease progresses. Mr. O’Brien stated they did not know they bought their home out of compliance and as Fairfax County school teachers, they were not in the position to purchase or build a new home that could provide the needed space. Mr. Creed asked if it was possible to pop the top of the current home, rather than the garage, and stay in conformance. Mr. O’Brien stated he would then be out of compliance for the height restriction. Ms. West explained the measurement for the height requirements in town confirming it would exceed the 35 feet height requirement. Town of Vienna Page 2 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 Mr. Dowler asked why the proposed addition was not built just on top of the garage but was being built further into the setback. Mr. O’Brien stated it did not need to be built that way as the original set of plans were to be directly above the garage but drew an additional set that showed the three-foot bump to give a more aesthetic view of the home. Mr. Dowler asked if he would be amenable to building directly over the garage as the Boards purview is the setbacks and not the aesthetics. Mr. O’Brien stated he was amenable as it falls in line with his purpose of having space for his mother but felt the second set of drawings made the proposed addition look better. Mr. Rak asked if any members of the audience would like to speak on the application Mr. William Sparrow of 1212 Cottage St SW was sworn in to give his testimony. Mr. Sparrow stated his home was directly behind 205 James and that he had no issue with the current location of the structure and was supportive of the application given the constraints of the property. He also felt the addition would not affect his property as much since it would only bring it closer to the rear lot line. Mr. Steve Point of 25 Wades Ct Rehoboth Beach, DE was sworn in to give his testimony. Mr. Point stated he was the owner of 1302 Cottage St SW and cleared up that the application was in reference to the rear setback. He also stated he was encouraged that the owner was working with an existing residence in Vienna and was modifying the current residence rather than tearing down and rebuilding as those homes can change the nature of the town. Ms. Rochele Kadish of 204 James Dr. SW was sworn in to give her testimony. Ms. Kadish stated she felt it was difficult to grow in Vienna without moving out of Vienna. She expressed how she enjoyed living across the street from the O’Brien’s and liked their home. Their home was he preference to a tear down and rebuild. It appeared a previous owner may not have received a permit for the garage leaving Mr. O’Brien with a non-conformity. She agreed with the other neighbors and supported the application. Mr. Rak asked for a motion to close the public hearing. Mr. Creed made a motion to close the public hearing portion of the agenda item. Mr. Gadell seconded the motion Motion: Creed Second: Gadell Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed. Mr. Rak asked for a motion for the variance application. Mr. Creed discussed the vote after each application with Mr. Rak. Mr. Dowler made a motion for a variance from the rear setback ordinance to build an addition directly over the existing garage, beyond the rear setback, at 205 James Dr. SW be granted with the proviso that the addition be built directly over the existing garage Town of Vienna Page 3 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 without being cantilevered per the plans. Mr. Petersen seconded the motion Mr. Rak asked for discussion. Mr. Dowler stated there was an unreasonable restriction on the use of the property due to the house, as built, exceeded the rear setback creating a non-conforming use. It is an odd-shaped lot and a second story addition above the garage does not increase the intrusion into the rear yard setback and is a reasonable solution for additional space. Mr. Petersen stated Mr. Dowler summed it up well and emphasized that it was a reasonable solution to the situation. Mr. Rak pointed out the trapezoid shape of the lot resulted in the area of proposed construction is narrow and agreed with Mr. Dowler’s reasoning. Motion: Dowler Second: Petersen Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed. 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, 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 stated the applicants revised their request eliminating the request for additional lot coverage and only requesting encroachments into the setback. She gave a brief presentation regarding the application as well as the history of the property. Staff provided an analysis of the lot area for neighboring properties per the Board’s request from the previous meeting. Mr. Anthony Pettoruto of 131 Wilmar Pl NW was sworn in to give his testimony. Mr. Pettoruto gave a brief history of the property including: its location, the easement behind the home, and the current square footage of 800 square feet for his family of five. He stated they had originally wanted to renovate, but the renovations were not going to be feasible which was why they were choosing to rebuild. The lot size is 7,375 square feet and only 50 feet wide which is outside of the current RS-10 code requirements. All the code requirements for a RS-10 on their lot makes it difficult to build on the lot. After the previous BZA meeting, the applicant stated they spoke with their architect to try to build within the lot with minimal effect on the current code requirements. Mr. Evan Stoddard, Architect – WC Ralston Architects, of 709 Jackson St NE was sworn in to give his testimony. Mr. Stoddard spoke on the proposed design details regarding the setback code constraints. He used a 30-foot-wide buildable footprint as that dimension is a functional threshold for single-family detached homes. Mr. Stoddard explained that the width would allow for room circulation allowing the spaces to be independent of one another. This was necessary for Town of Vienna Page 4 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 the family to live and work. Mr. Creed stated he was concerned about the BRL (building restriction line) for the adjoining properties in reference to the fire code. If the neighboring house caught fire would it easily spread from house to house. Mr. Stoddard stated there would not be any additional fire rating required as the minimum threshold is 5 feet. Currently the existing home is only 4 feet from the neighbors’ property so what is proposed would improve the setback. Mr. Dowler asked Mr. Pettoruto if the easement behind his home was vacated. Mr. Pettoruto stated they had purchased a portion of the rear alley, but the easement exists until every portion of the alley is sold. Mr. Dowler then asked if they were proposing to tear down entire home, Mr. Pettoruto said that was correct. Mr. Dowler asked if they would have a 50’x 87’ building envelope and if they were requesting a variance for the side yard setback of 2’ on each side the entire length of the proposed home. Mr. Pettoruto stated they were requesting 2’ feet on both sides making their side yard setback 10’ rather than the 12’ allowable per the code. Mr. Dowler asked about the architectural feature on one side that is to extend 6’ from the home. Mr. Pettoruto stated the architectural feature would be an additional 2’ for a total of 4’. Mr. Dowler asked if that would bring the feature within 2’ of the property line. Ms. West stated the architectural feature was the areaway and it would be 6’ from the property line. Areaways and architectural features are not allowed to encroach more than 4’ into the side yard setback. Mr. Dowler asked if they were encroaching 6’, Ms. West said yes. Mr. Rak clarified stating they were allowed to encroach 4’, so they were requesting an additional 2’ encroachment. Mr. Dowler asked what would remain as the setback from the property line, Ms. West said 6’. Mr. Pettoruto stated they were currently 4’ from the property line and there were certain egress building code requirements for the areaway. Mr. Dowler asked if the proposed plans were not using approximately 30 feet of the rear portion of the building envelope. Mr. Pettoruto stated that was correct as they would like to maintain some rear yard space. Mr. Rak asked the architect if there was an alternative that could respect the side yard setbacks and extend the house further to the rear and would there be any obstacles. Mr. Stoddard stated it was a narrow footprint that would extend the home in depth which would create design inefficiencies with more square footage that would be dedicated to hallways and would cause an additional cost as more materials would be required. Mr. Nash made a motion to close the public hearing portion of the meeting and Mr. Creed seconded the motion. Motion: Nash Second: Creed Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed. Mr. Rak asked for a motion on the variance request application Mr. Dowler made a motion that the request for a variance from Section 18-33.D, and Section 18-169.A.1 of the on the property located at 131 Wilmar Pl NW, be denied. Mr. Creed seconded the motion. Mr. Dowler stated the Board’s purview is to find a reasonable restriction on the use of the property or a hardship due to the physical aspects of the property. If a reasonable Town of Vienna Page 5 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 restriction and a hardship has been found the Board can grant a reasonable variance. With the house being torn down, there is approximately 50’x87’ without violating any setbacks leaving no real restriction to how the home could be built within the setbacks. Mr. Dowler felt the request to build outside of the setbacks was an unreasonable request and there was no persuasive evidence that would allow for granting a variance. Mr. Rak stated there was some discrepancy regarding the width and length. Ms. West stated the lot width was 50’ and the buildable width/envelope was only 26’ feet. Mr. Dowler understood and stated a house could be built within those setbacks. Mr. Creed agreed with Mr. Dowler stating the architect should be able to design a home that could fit within the lot. Mr. Gadell stated he agreed with Mr. Creed and Mr. Dowler stating the house size for the size lot would be intrusive and allowing this variance could cause an issue if, in the future, additional requests came forward for similar variances. Mr. Dhanjal respectfully disagreed as the lot was smaller than a standard 10,000 square foot RS-10 lot. The proposed new build reduces the area the home would be on the property. The neighbors, in the previous meeting, testified what they were trying to create on the street. Since it is not a typical RS-10 lot, it is difficult to hold the homeowner accountable for the setbacks of a typical RS-10 lot. Mr. Dowler asked if all the lots in the neighborhood were undersized. As undersized lots are not a factor, but the unreasonable restriction of use of the lot is a restriction with a reasonable solution. Ms. West pointed out to the Board the map that was requested showing the surrounding lot sizes and their variations. The lots shown in gray met the lot area requirements (RS-16, and RS-10). The brighter colored lots are the properties that don’t meet the lot requirements. Mr. Rak asked if the homes that do not meet the lot area requirements encroach into the side yard. Ms. West stated she was not sure, but she believed several did encroach. Mr. Rak asked for any further discussion, with none, he asked for a vote for the denial of the variance application. Motion: Dowler Second: Creed Ayes: Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. Nays: Mr. Dhanjal, Mr. Nash 5 Ayes, 2 Nays – motion to deny passed. 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 spoke in regard to the memo sent to the Board regarding the state code section referencing the Americans with Disability Act and zoning variances. Mr. Michael Jensen and Ms. Kelly Jensen of 1001 Mountfort Ct SW were sworn in to give Town of Vienna Page 6 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 their testimony. Mr. Jensen stated he was a retired special operations veteran and lived in Vienna with his wife and son. He apologized for putting the fence up without prior approval from the town due to a misunderstanding of the code. Mr. Jensen gave a brief description of his service and that he was paired with a trained working dog after he returned from Iraq due to specific disabilities sustained while serving in the Army. He stated their home had been a hoarder home. The first night in the home their dog jumped their short fence, the loss of his dog would cause a financial loss but a greater loss to him. He stated he was asking for the variance under the ADA to allow a 6’ fence on a corner lot. The Virginia state code, allows for a variance to be granted due to ADA need based hardship. Mr. Jensen referenced a February 2021 Fairfax County variance case that was granted a variance accommodation for a child with autism. Mr. Jensen stated there were no impairments for pedestrians or drivers for his fence. The neighbor behind them, the church, expressed no concern to the applicant about the fence height. Mr. Jensen stated on their first night there was person who was found urinating in the backyard also stated everyone deserves a reasonable amount of privacy and stated it was nice to have an enclosed lot for his young children. They had also found broken bottles, needles, and unused drugs. The fence keeps the service animal safe and keeps the family safe from unwanted crime. Mr. Jensen hoped the Board would support his request for a variance per the ADA allowance in the Virginia state code. Mr. Dowler asked for the section of the Virginia state code Mr. Jensen was referring to, Mr. Jensen said it was Virginia state code section 15.2-2309.2 Mr. Rak asked about the memo sent to the Board and if the code was included. Ms. West stated that was correct and that section was outlined in the memo. Mr. Dowler asked if Cairo, the service dog, was well trained and what type of training. Mr. Jensen stated he was paired to assist with specific disabilities. He then asked when Mr. Jensen obtained Cairo, Mr. Jensen said 9 ½ years ago. Mr. Dowler asked if Cairo had a propensity of running away or jumping fences. Mr. Jensen said he does not, but it was a bit difficult having moved to a new state. Mr. Dowler asked if Mr. Jensen had looked into other means of keeping Cairo on the property. Mr. Jensen said he is trained to not run away; it was just stressful as Cairo was in a new place. An invisible fence and a shorter fence would not accommodate their needs as another animal could attack Cairo. Mr. Dowler said that the criminal activity near his home was not unique to his property in town. The 6-foot fence appeared aggressive as it was right on the sidewalk and was built without a permit. Mr. Dowler stated that had Mr. Jensen seen the permit application, he may have been able to resolve any issues. Mr. Jensen apologized for building the fence without a permit, it had not been built to appear aggressive, but to protect people on both sides. Mr. Dowler asked what the risk of losing the service animal would be as his training indicates he would stay. Mr. Jensen said he would hope so, but he understood that animals are animals, and he didn’t feel he should incur a liability from other citizens un-trained dogs if they attacked his dog or family. Mr. Dowler stated that was a risk everyone in the community has and they are not allowed to put up a 6’ fence. Mr. Creed stated he was a retired Air Force officer and thanked Mr. Jensen for his service and stated his brother was a Navy fighter pilot who unfortunately did not come back from the Vietnam war. Mr. Creed asked if his service dog was an emotional support animal. Mr. Jensen said he was not as his dog was a working dog. Mr. Creed stated he felt the 6’ fence seemed appropriate and asked if the service dog was to be able to guide him, and Mr. Jensen said yes. Mr. Creed asked Ms. West if ramps were permitted through variance request through the necessary time frame that they are needed. He then asked if Town of Vienna Page 7 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 they could do the same for this variance request. Ms. West stated there was a code provision for ramps allowing them to be approved administratively. Mr. Creed stated previously the BZA would approve on a case-by-case basis and there was a requirement added to remove them. There had been so many that it had been suggested to Town Council to have it permitted administratively. Mr. Creed asked if the Board approve the variance with the condition to remove it when the need ends, Ms. West said yes. Mr. Rak read the following from the memo: “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...”. Mr. Creed stated he understood and wanted to make sure it was made aware during the hearing. Mr. Johnathan Hildebrand of 1000 Mountfort Ct. was sworn in to give his testimony. Mr. Hildebrand stated he has lived in Vienna for 40 years in two different locations. Mr. Hildebrand stated he had been at the previous hearing and had heard that there were two issues from that meeting. One was a potential safety issue at on the street, but he felt there was no issue as a person can see down Mountfort Ct. and there didn’t appear to be any safety issues regarding the church. The other issue was regarding following the rules, Mr. Hildebrand asserted the Mr. Jensen would have never knowingly violated a rule about fences as he is a rule follower. He continued questioning the rule about the 6-foot fence as there are other 6-foot fences in town. Mr. Hildebrand questioned punishing someone who was unaware of the 6-foot fence when there is a need due to his working dog. Mr. Rak asked Ms. West if the sections of taller fence on Marshall Rd had a variance or if they had an exception. Ms. West stated they could have been long existing conditions or variances. Mr. Jensen stated he asked 11 neighbors with 6-foot fences, and they did not have variances. Ms. Jensen expressed the importance of their working dog Cairo for Mr. Jensen. She stated the 6-foot fence would be reasonable as an invisible fence would not protect both sides of the fence. The 6-foot fence provides the safest solution for both sides of the fence and is a reasonable accommodation based on the lot, and other fences in the neighborhood. She asked the board to consider their arguments, her husbands service, and compliance with the ADA. Mr. Robert Reynolds of 1003 Frederick St SW was sworn in to give his testimony. Mr. Reynolds stated he spoke in July about the two issues referred to by the previous speaker, Mr. Hildebrand. Mr. Reynolds stated that Marshall Rd is a key conduit to Marshall Rd Elementary School, Vienna Baptist Church, and Vienna Aquatic Club and the town’s safety code should be followed. Mr. Reynolds stated the three areas of concern: the cross walk at Mountfort, the cross walk at Ware and the church alley. The fence pushed to the sidewalk at 1001 Mountfort Ct and the 4-ft fence at 1000 Mountfort Ct. has an added trellis making it a 6-foot fence give two 6-foot fences at Mountfort Ct. crosswalk. The church alley is used as a cut through for people and the fence at 1001 Mountfort Ct hides the alley. The crosswalk across Marshall Rd to Ware St., just past the alley, is heavily trafficked by those south of Marshall Rd. Marshall Rd. is dangerous as Mr. Reynolds stated he’s seen people who drove up the curb as well as pulling kids away from being hit by cars from people backing out. The shortage of FCPS bus drives has increased walkers along Marshall Rd. There was no permit filed for the fence, a search of the web Town of Vienna Page 8 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 would present the code requirements for fence heights, especially corner properties. The builder and resident did not research, leaving the owner to build without prior approval. An allowed 6-foot privacy fence would be the only one on a corner lot in the area covering Meadow Ln to the north, Cottage St to the east, Nutley St. to the west, and Patrick St to the south. Which is contrary to the information given about 6-foot fences around or even on a corner lot. All legacy homes and new builds have all followed town code except for 1001 Mountfort Ct. Mr. Reynolds stated he had sent an email with photos of fences on corner lots. He understood the ADA and the requirement for the towns review but asked if the town would carefully consider if waiving the safety of the greater community for an individual family. Mr. Reynolds stated he lives on a corner lot, has a dog, and children. They wanted additional privacy and protection when building their fence and adhered to the town regulation. He concluded asking the Board to apply the law to all residents fairly for the safety of the town residents. Mr. Creed asked if a 4-foot fence was allowed what would it achieve regarding the ADA need for the working dog. Mr. Reynolds asked if the dog would leave his side considering both meetings the dog had stayed by Mr. Jensen’s side perfectly still. When asked in testimony if the dog would run away the answer was no as he is trained to not run away. Mr. Reynolds stated that one of Mr. Jensen’s reasons for the 6-foot fence was the high foot traffic in the area. Mr. Creed asked what that would achieve. Mr. Reynolds stated it would achieve safety for kids walking to and from Marshall Road Elementary School, Vienna Baptist Church, and Vienna Aquatic Club. Mr. Creed asked in what way it would be safer. Mr. Reynolds stated it would prevent drivers from jumping curbs, backing out without seeing walkers coming. Ms. West clarified that the reason for 6-foot fences in the area as a 6-foot fence is allowed along the right of way in cases when it is the rear yard of the property. Some properties in town have the rear of the property facing the right of way. Mr. Rak asked if the 4-foot limit runs the length of Marshall Rd. Ms. West stated it was the length, but in the case of 6-foot fences at the rear of the property facing a road it is allowed. Victoria Sanchez of 1100 Wilson Blvd, Arlington, VA was sworn in to give her testimony. Ms. Sanchez asked if there was a specific ADA compliance line regarding applications or if it was stated on the Vienna website for those with ADA requests for fencing. Ms. Sanchez asked if she could have that information. Mr. Rak tried to clarify what Ms. Sanchez’s question was by asking if she need the fence restrictions. Ms. Sanchez said yes, regarding the Americans with Disability Act. She stated that she was not a resident of Vienna and was interested in the topic and wanted to make sure that the application for a person with a disability is looked at and not overlooked. Mr. Rak stated there were not separate resources in compliance with the ADA as they are withing in the Federal and State government. Mr. Rak asked for a motion to close the public hearing for the application. Mr. Gadell made a motion Mr. Creed seconded the motion Motion: Gadell Town of Vienna Page 9 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 Second: Creed Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. Nays: Mr. Dhanjal, Mr. Nash 7 Ayes, 0 Nays – motion passed Mr. Creed made a motion that the 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 residential zone be approved with the condition that when the need for the fence goes away per the ADA, the fence height be reduced to a 4-foot fence. Mr. Gadell seconded the motion. Mr. Creed said it was a perfect accommodation for the ADA need and removal of it when the ADA requirement and service animal are not required. The town is doing what is needed as there does not appear to be an impact for pedestrians. Mr. Creed stated he has driven the area as well as knowledgeable of the area and did not see an issue. Mr. Petersen stated he opposed the motion as he read the submitted materials and listened to the oral testimony and did not see a need for a non-compliant fence for the protection of the property and security of the applicants. There was nothing submitted in writing or via oral testimony that suggested that denying the variance would contravene the ADA. Mr. Petersen said for those reason he could not support the motion. Mr. Dowler said that section 15.2-2309 spoke in terms of accommodating ADA disability, but did not alleviate the responsibility of the Board to determine if there was a hardship or reasonable modification of the property. With that in mind, Mr. Dowler did not believe the fence was a reasonable accommodation. The fence was put up in haste, the evidence to support was one incident of the dog running away. It was stated it was for the protection of the family which are risks experienced by the community in general. The fence is aggressive as it is so close to the sidewalk it feels as if it is pushing a person off the sidewalk. This brought into question if the towns right of way ended that close to the sidewalk. The evidence provided did not satisfy the burden of proof. Mr. Gadell agreed with Mr. Creed as he felt it was a reasonable accommodation for ADA and will be vacated when no longer needed. The individual was not familiar with the towns requirements and relied on a builder who should have check prior to building. Mr. Gadell stated he felt it was a reasonable accommodation and would be voting for the motion. Mr. Rak stated he felt the application was difficult as there was no testimony for a hardship under the typical variance standards, but there was discussion of reasonable accommodation under the ADA. Mr. Rak felt the evidence provided may be missing the requirement of an accommodation under the ADA. Mr. Rak asked if any of the Board members had expertise with the ADA that would be relevant. Mr. Dowler suggested that the code section presented was 15.2-2309 which reads as the Board has the right to look at whether there is a hardship and if the solution is a reasonable accommodation. The applicant did not submit evidence (for the hardship and reasonable accommodation) in support of his application. The towns code section states the applicant has the burden of proof so there is no need to look outside what was presented at the meeting. Mr. Dhanjal stated the applicant submitted in his original application Virginia Code 51.5-44. In attachment two of the materials on page two, halfway through references the ADA compliance in terms of state compliances and how it would apply to the BZA. The Town of Vienna Page 10 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 ADA does talk about an application and the standard of proof which is the preponderance of the evidence standard of 50% plus 1. If there is a 50% chance, they met their burden in terms of a civil evidentiary standard. Mr. Dhanjal stated he was not a disability lawyer, but in terms of standard of proof, that was the standard of proof adjudicating an ADA claim. Mr. Dhanjal questioned whether the burden had been met but stated he would vote in favor of the application. The reasons for his vote were, the variance would end when the need ended, the service animal was needed to support the applicant and his family. Motion: Creed Second: Gadell Ayes: Mr. Dhanjal, Mr. Nash, Mr. Rak, Mr. Creed, and Mr. Gadell. Nays: Mr. Petersen, Mr. Dowler 5 Ayes, 2 Nays – motion passed 100 Ayr Hill Ave NE (301 Center St N) - Child Day Center Request for approval of a conditional use permit from Section 18-31, 18-13.F, and 18-210.W of the Vienna Town Code for a Family Day Home for a child day care center located on property located at 100 Ayr Hill Ave NE (301Center St N.) in the RS-10, Single-Family Detached Residential zone and CM, Limited Industrial. Application filed by John Recny of Helbing, Lipp, Recny Architects on behalf of Ahmad and Anastasia Abraham of The Classroom LLC and Rev. Brenda Burns of Vienna Assembly of God. Mr. D’Orazio gave a brief presentation for the application for a proposed child day center for the Vienna Assembly of God Church. It would utilize the church during the week only. The request was for 63 children maximum with a staff capacity of 18, but they will start with 30 children. They would operate between the hours of 8am and 6pm, Monday through Friday. Ms. Brenda Burns of 301 Center St. N. was sworn in to give her testimony. Ms. Anastasia Abraham of 209 Berry St SE was sworn in to give her testimony. Ms. Burns stated there was not much to add to the staff report. They would like to put their space to good use during the week supporting the vital need in the community. Ms. Burns stated the congregation could not do this on their own, so they were partnering with The Classroom LLC. Ms. Burns stated she could answer building questions, and Ms. Abraham could answer the operational questions. Mr. Rak stated the Planning Commission memo stated the need for an accessible point of access. Mr. Rak asked how that issue was being addressed. Ms. Burns stated she didn’t understand that requirement for approval but perhaps a recommendation for the facility. There was not a way to fully address as there is not an entry way in the building that does not have at least one step. The question by the Planning Commission member was in reference to strollers being brought and the potential need for a ramp. Ms. Abraham stated they were not considering parking spaces for strollers so the strollers could not be parked inside. Mr. Rak asked if there was a review during the building permit process or occupancy permit process that would determine compliance. Mr. D’Orazio stated, in terms of ADA, town staff is required to assess ADA compliance in terms of the parking lot. Entrances around the building and ADA compliance is a review required by Fairfax County. Mr. Creed asked if the county and state requirements, licenses and reviews regarding Town of Vienna Page 11 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 health, and fire would be evaluated, Ms. Abraham said yes. Ms. Burns stated the licensing is separate issue and is on a parallel track. Mr. Creed stated the Board is involved in making sure the health and welfare of the community are taken care of which was the reason for the question. Mr. Creed asked what number of children they would initially have as opposed to the maximum request of 63. Ms. Abraham stated they would start with 30 on the first floor of the building and in the future expand to 63 and add the second floor into the childcare. Mr. Creed stated he would like to see the daycare go with 30 to ensure that would work. Ms. Burns stated the original conversation was to make a certain area of the building available for daycare and continued with requesting if it would work to utilize the second section of the building if the daycare expanded. The request was to see if the application would be considered in the two-pronged way. Mr. Dowler asked if the church had a CUP for the school currently. Mr. D’Orazio stated it had at one point, but the last approval was in the early 2000’s. Ms. Burns stated there was a CUP for Fairfax Christian School in the late 80’s, early 90’s. In the early 2000’s another permit was granted for Dominion, but they did not open so that expired for lack of use. Mr. Creed asked if those two were gone. Ms. Burns and Mr. D’Orazio said that was correct and they were no longer used for that use. Mr. Dowler asked if there was no longer any other school, daycare, or children’s program at the church other than that of the application before them, Ms. Burns stated that was correct. Mr. Dowler asked who would run the daycare. Ms. Abraham stated it would be The Classroom LLC. Mr. Dowler asked what their relationship was to the church. Ms. Burns stated the church would be leasing the space to The Classroom LLC. Mr. Dowler asked what type of license they were required, Ms. Abraham stated they were in the process of getting the Virginia State license through the Department of Social Services. The application includes inspection reports, the plan for the childcare facility and it is under review. Mr. Dowler asked what the license is called, and Ms. Abraham stated it was called center-based childcare. Mr. Dowler asked what that meant, and Ms. Abraham stated it simply meant no one lives in that building rather than residential. Mr. Dowler said the application was for a nursery kindergarten and asked if there would be nursery or kindergarten activities. Ms. Abraham stated there would be a curriculum for ages 2 ½ up to Kindergarten age. Mr. Dowler asked if there was a license for the curriculum. Ms. Abraham stated there was no requirement for the curriculum as it was not a private school for kindergarten and school age children. Mr. Dowler asked if they formulate their own curriculum or if it was purchased. Ms. Abraham stated they formulate their own. Mr. Dowler asked if it would be similar to that of a nursery school, Ms. Abraham stated no, but that of a childcare. Mr. Dowler stated there had been issues in the past as to what the BZA had the authority to grant. Ms. Abraham stated there is a need for nursery school / childcare education as she has seen children going into kindergarten are not aware of the basics needed when starting school. Mr. Creed asked if it was English only and Ms. Abraham stated they would be teaching in English but would not discriminate against non-English speakers. Mr. Craig Burns of 301 Center St N. was sworn in to give his testimony. Mr. Burns stated and his wife had an informal survey of the neighbors of the church, and businesses and there was an overwhelming response for a need for the day care center. He had done so in the community as well hearing that there was a great need in the community and an opportunity for the community to utilize their facility. Everything has been worked through, they are in the community, and they know how to work with those in the community and with neighbors. They currently have a good network and system to make this work. Mr. Burns stated again that everyone they have spoken with is in favor and approve their request and hopes the Board of Zoning appeals will grant the CUP. Town of Vienna Page 12 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 Mr. Creed asked Mr. Burns how they will proceed with growing the childcare center to 63 and how soon that might happen. Mr. Burns stated that he would have Ms. Burns and Ms. Abraham answer that question about how to go from 30 to 63 children, but also stated many people have been asking for day cares and where to find day cares so there is a great need. Ms. Burns stated that the county code was used to determine how many kids can fit in the space. Ms. Abraham stated the number of children was based on the calculation based on the square footage. Mr. Creed asked Mr. D’Orazio if the there was a difference in the allowable child load vs. the county. Mr. D’Orazio stated the child count is up to the county. The applicants had to go through a process in the county to amend the use group to go from A3 to E, it is packet item number 4. Town staff doesn’t review on that level as it is a county requirement. The state license issued will state how many staff member a facility will need which will dictate how many kids they are allowed to have. Mr. Rak asked for a motion to close the public hearing. Mr. Petersen made a motion to close the hearing and Mr. Dowler seconded the motion. Motion: Petersen Second: Dowler Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed Mr. Petersen made a motion to approve a child day center for Vienna Assembly of God at 100 Ayr Hill Ave NE (301Center St N.) to be operated by The Classroom LLC as submitted and that the CUP be approved for up to a max of 63 children with a max staff of 18 with operating hours of 8am to 6pm Monday through Friday with no limitations requiring further review by the Board. Mr. Creed seconded the motion. Mr. Petersen stated the proposed use is ideally located in an area of town in a facility that would lend itself excellently for what it would be used. It addresses an important need in Vienna and would be a great benefit to the town. Mr. Creed stated the use was compatible with the Comprehensive Plan by bringing in the day care facility. Mr. Rak agreed with Mr. Petersen’s explanation and felt it was a terrific use and would vote in favor of the motion. Motion: Petersen Second: Creed Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed Regular Business BZA - Board Member Electronic Participation Discussion Mr. Rak asked for approval for the board member electronic participation resolution. There was a copy of the resolution in the packet for the board members. This requirement was new when amendments to Virginia’s FOIA came into effect July 1st allowing electronic participation during states of emergency. Public bodies can only take Town of Vienna Page 13 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 advantage by adopting their own electronic participation policy. Mr. Briglia provided the electronic participation policy for the Board to review. Mr. Petersen made a motion to approve, and Mr. Gadell seconded the motion. Mr. Creed stated they hadn’t done this before but wanted to move forward and see how it works. Mr. Rak states the policy would give us as much latitude as allowed outside of states of emergencies for personal reasons twice a year and indefinite amount of time when the member or family has a medical emergency. Mr. Creed voiced his concern about twice a year for the allowable electronic participation. Mr. Rak stated there are two authorizations, the ability for electronic participation when there is not state of emergency as well as the ability to participate when there is a state of emergency for an unlimited amount of time. Motion: Petersen Second: Creed Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed Approval of the Minutes: Mr. Rak stated the last item was the review and approval of minutes for May and July. He stated he found a few typos which he submitted to the clerk to correct. There was a vote correction made by Mr. Creed as well that was to be corrected. Mr. Dowler submitted the correction on page 12 had Mr. Dowler and Daly as Aye’s and they were both absent. Mr. Rak asked for a motion to approve the minutes as corrected. Mr. Petersen made a motion to approved the amended minutes and Mr. Gadell seconded the motion Motion for May minutes: Petersen Second: Gadell Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed Motion for July minutes: Petersen Second: Gadell Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, and Mr. Gadell. Abstain: Mr. Creed, Mr. Dowler 5 Ayes, 0 Nays – motion passed Meeting Adjournment Mr. Rak asked for a motion to adjourn. Mr. Dowler motioned to adjourn the meeting Mr. Nash seconded the motion Motion: Dowler Second: Nash Town of Vienna Page 14 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 2021 Ayes: Mr. Dhanjal, Mr. Nash, Mr. Petersen, Mr. Rak, Mr. Creed, Mr. Gadell, and Mr. Dowler. 7 Ayes, 0 Nays – motion passed The meeting was adjourned at 9:59 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 15 Printed on 1/12/2022 Board of Zoning Appeals Meeting Minutes September 14, 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 16 Printed on 1/12/2022