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, December 21, 2022 7:30 PM Vienna Community Center - Southside Rm 2nd Floor Roll Call The Board of Zoning Appeals (BZA) held one advertised public hearing in the Vienna Community Center, located at 120 Cherry Street, SE, Vienna, Virginia, on Wednesday, December 21, 2022, at 7:30 pm. Chair Mr. Nash called the meeting to order at 7:30 pm. Roll call: Mr. Creed, Mr. Gadell, Mr. Dowler, Mr. Lowther, Mr. Petersen, and Mr. Nash were present. Member Absent: Mr. Dhanjal Staff present: Zoning Administrator Andrea West and Board Clerk Yaska Camacho Castillo. Mr. Nash explained the purpose of the Board of Zoning Appeals and the meeting process. Public Hearings Item 1: BZA-22085 100 Moore Ave SW - Request for approval of a variance from Section Sec. 18-15. F. Lot Coverage, of the Vienna Town Code, to construct a driveway for an existing single-family dwelling located at 100 Moore Avenue, SW, in the RS-10, Single-Family Detached Residential zone. The Town Code permits a maximum lot coverage of 25%. Approval for construction of the driveway would result in the lot coverage exceeding the 25% limit by 1.11%, thereby having a total of 26.11% on the property. Application filed by Jacqueline Hirschkop Prensky and Mark Funk, property owners Ms. Andrea West – Zoning Administrator – 127 Center St South Vienna, VA – was sworn in to speak. Ms. West gave a brief presentation that included the property location, zoning information, and construction background. Ms. West noted that the certificate of occupancy issued on June 2022 by the Department of Planning and Zoning in the Town of Vienna states that the house was built according to the plans and that all conditions were met for Fairfax County inspections. Ms. West explained that the request for the variance is for lot coverage. She said that the application stated “construct” because there has yet to be a permit issued, but the applicant wishes to retain the driveway that exceeds the 25% lot coverage by 1.11 %, bringing total lot coverage to 26.11%. Town of Vienna Page 1 Printed on 2/21/2023 Board of Zoning Appeals Meeting Minutes December 21, 2022 Ms. West stated that a zoning violation was issued for working without a permit, and soon after, a second zoning violation was issued for building over lot coverage. Ms. West explained that the applicant is trying to obtain a permit for the driveway through the variance request. The applicant will submit a permit application for the driveway through Vienna if the variance request gets approved. If the variance request gets denied, they will work with the applicant to get the lot coverage back down to 25% or below. Ms. West provided the board with documents on the existing conditions of the driveway, information on what is counted towards lot coverage, what the lot coverage was upon occupancy, and what the lot coverage is currently. Mark Funk- 100 Moore Ave SW Vienna, VA – The owner was sworn in to speak. Mr. Funk stated that they moved into the new home in June 2022. They were unaware of the lot coverage requirement or that they needed a permit for the work they did to the driveway. He explained that when they moved in June, they quickly realized that the driveway configuration (narrowing zig-zag) was extremely dangerous when backing out and for pedestrians and drivers at the intersection. He said they added over a hundred square feet to the driveway. To them, all they did was straighten the driveway to address the safety issues. He commented that there is no other option to address the safety issues other than going slightly over the 25% allowed lot coverage. Mr. Funk confirmed receiving the zoning violation for having work done without a permit and for going over the 25% lot coverage. He also mentioned that he did some research and came across the Code Create Vienna driveway ordinance and noticed that the original configuration of the driveway was out of compliance with the Code Create Vienna standard, which he believed would be implemented shortly if it hasn’t already. Mr. Creed asked the applicant if the builder told him the house was at the 25 % lot coverage, to which the applicant responded no. Mr. Creed then asked if the settlement attorney reviewed the plat/survey of the home with him. Did the attorney ever indicate the 24.99 % lot coverage? Mr. Funk responded no. He said he received a plat; however, nothing referred to the 25% lot coverage requirement. Mr. Creed followed up by asking if the builder ever said anything about whether he could or couldn’t straighten the driveway, and Mr. Funk said no. Mr. Creed then asked when was the property contract written, and Mr. Funk responded that it was written in June 2022. Mr. Creed asked if it was after the home was built, and Mr. Funk replied yes. Mr. Lowther inquired the property owners to explain what they considered was the hardship in their situation. He noted that although it seems a bit difficult to get out of the driveway, they still have to go straight and have a good view when backing out into the street. Jacqueline Hirschkop Prensky- 100 Moore Ave SW Vienna, VA – The owner was sworn in to speak. Ms. Prensky stated she has degenerative arthritis in her neck, which made it difficult and required more mobility skills when backing out of her driveway. She said degenerative arthritis is an ADA-covered condition. She explained some obstacles she faced when backing out of her driveway. Mr. Lowther questioned how the new construction changed the dynamic Ms. Prensky described. Ms. Prensky responded that with the change they made to their driveway, they now have enough room to drive straight back where she can rely on the camera more and Town of Vienna Page 2 Printed on 2/21/2023 Board of Zoning Appeals Meeting Minutes December 21, 2022 not have to turn her neck far. Mr. Dowler inquired about the contractor they hired to work on the driveway. He wondered if they had a written contract. Ms. Prensky replied yes. Mr. Dowler asked if there was language on the contract stating who would get the permit. Ms. Prensky said there was no such language on the contract. They continued to discuss the possibility of a discussion on needing a permit to work on the driveway. Mr. Lowther asked Ms. West if the applicants were correct when they stated that under the new code create code the driveway would’ve been non-compliant. Ms. West clarified that the new code create code is currently at the proposal stage. Town Council has not discussed or adopted the code. When the driveway was built, it was built within the code standards. Mr. Petersen asked if the contractor was licensed. Ms. Prensky responded that she wasn’t sure if the contractor was licensed. Angela Sorrell- Resident- 805 Plum Street- was sworn in to speak. Ms. Sorrell stated she was not in favor of the variance request. She voiced her concerns about the effect an approval to the application would have in the Town of Vienna. She empathized with the applicant’s driveway situation but didn’t see any hardship. She stated that other residents would start doing the same (going over the 25% lot coverage) if this application gets approved. Lastly, Ms. Sorrell noted that when she bought her house in Plum street, she wasn’t made aware of the 25% lot coverage; she doesn’t recall a settlement attorney providing her with that information. She said she was familiar with the 25% lot coverage because she has lived in the Town for ten years. Ms. Sorrell commented that this was an opportunity for the Town to educate new buyers on understanding the code and protect residents from situations like this one. Mr. Creed asked Ms. West if they were to ask the applicants to shave off a foot or two of each side of the driveway would that bring them back into compliance? He stated he was looking for a way to make it work for them by giving them the lot coverage required and still having the squared driveway that meets their needs. Ms. West responded that shaving off a foot or two would decrease the request but would not bring the driveway into compliance. Ms. West noted that with the original driveway configuration the applicants had .75 sq ft of lot coverage available. They would need a analysis by a surveyor to determine what the quantity was for the old driveway. Mr. Creed made a motion to close the public hearing, and Mr. Gadell seconded the motion. Mr. Dowler made a motion that the application filed by Mark Funk and Jacqueline Prensky for a variance from section 18-15 F of the town code to retain a driveway in excess of the maximum lot coverage located at 100 Moore Avenue SW be denied. Motion: Mr. Dowler Second: Mr. Petersen The board had a discussion on the motion. Mr. Dowler stated that the board heard and saw the evidence related to the old driveway, and he didn’t think it was relevant to the request that was presented to them because the Town of Vienna Page 3 Printed on 2/21/2023 Board of Zoning Appeals Meeting Minutes December 21, 2022 old driveway was gone, so there was no issue before them. Before the board was a driveway that exceeded the 25 % lot coverage and was built without a permit. Mr. Dowler also noted that the reason for exceeding the lot coverage was that the applicants never applied for a permit. If a permit had been applied for, the lot coverage issue would’ve been discovered. You don’t grant a permit when it’s the applicant’s wrongdoing. It would be unfair to those residents who would be in line or would like to expand their property but can’t do so if they follow the current rules. Mr. Petersen commented on the zoning violation being adequately issued. The work that requires a permit was done without a permit. There was no discussion or anything in writing that suggested a hardship. Mr. Gadell supported Mr. Dowler’s and Mr. Petersen’s motion to deny the variance request. He stated he looked at the request from a different perspective. If the applicant had not done the work that they did and would have come to the board before the work was done asking for a variance, he doesn’t see the board granting the variance. Mr. Creed stated he also supported the motion to deny the variance request. He commented that there should be some liabilities when you apply for a variance after creating the problem. If the applicant had followed the permitting process, the town could have worked with them and provided some ideas. Mr. Lowther stated that he agrees that the request for a variance would have been denied if the applicant had come in before getting the work done. He doesn’t see hardship. Mr. Nash also agreed with the motion to deny the request. He explained that hardship is something that runs with the property. He provided some examples, one of them being having a pie-shape lot. He also noted that he agreed with the resident’s comment that if the variance request gets approved, it will cause a snowball effect in the town; everyone would try to go over the 25% lot coverage permitted. Mr. Dowler made a motion that the application filed by Mark Funk and Jacqueline Prensky for a variance from section 18-15 F of the Town code to retain a driveway in excess of the maximum lot coverage on the property located at 100 Moore Avenue SW be denied. Motion: Mr. Dowler Second: Mr. Petersen Ayes 6 Nays 0 Absent: Mr. Dhanjal Motion Carried Regular Business Approval of the Minutes Mr. Gadell made a motion to approve the meeting minutes from September 21, 2022, and Mr. Creed seconded the motion. The meeting minutes for September 21, 2022, were accepted into the record with an amendment. Election of officers The board discussed the following: Town of Vienna Page 4 Printed on 2/21/2023 Board of Zoning Appeals Meeting Minutes December 21, 2022 • New board member Mr. Lowther introduced himself to the board. • The board elected a new Chair & Vice Chair to the Board of Zoning Appeals. o Mr. Dhanjal is now the new Chair of the Board of Zoning Appeals by an acclamation vote of 6-0. o Mr. Lowther is now the Vice Chair of the Board of Zoning Appeals by an acclamation vote of 6-0. • Mr. Dowler inquired about the status of the two applications that were appealed to the circuit court. He recommended that the board be informed of the outcomes. He believes it will be helpful for the board to know the circuit court ruling. • Mr. Nash stated that he believes there is too much communication with the zoning administrator. Anything the board wants to know should go through the Chair or the Clerk. Meeting Adjournment Mr. Nash asked for a motion to adjourn. Mr. Creed made a motion to adjourn, and Mr. Lowther seconded the motion. All board members voted in favor of adjourning. There being no further discussion, the meeting adjourned at 8:20 pm. Respectfully submitted, Yaska Camacho Castillo Board Clerk THE TOWN OF VIENNA IS COMMITTED TO FULL COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT STANDARDS. TRANSLATION SERVICES, ASSISTANCE OR ACCOMMODATION REQUESTS FROM PERSONS WITH DISABILITIES ARE TO BE REQUESTED NOT LESS THAN 3 WORKING DAYS BEFORE THE DAY OF THE EVENT. PLEASE CALL (703) 255-6341, OR 711 VIRGINIA RELAY SERVICE FOR THE HEARING IMPAIRED. About the Board of Zoning Appeals Town of Vienna Page 5 Printed on 2/21/2023 Board of Zoning Appeals Meeting Minutes December 21, 2022 About the Board of Zoning Appeals: 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 6 Printed on 2/21/2023