County of Fairfax, Virginia
To protect and enrich the quality of li fe for the people, neighborhoods and diverse communities of Fairfax County
December 6, 2010
Thomas S. Cherry 3115 Northwood Road Fairfax, Virginia 22031
Re: Special Permit SP 201 O-PR-054 Thomas S. Cherry
Dear Mr. Cherry:
At its December 1, 2010 meeting, the Board of Zoning Appeals took action to APPROVE the above-referenced application. A copy of the Resolution is attached.
This action does not constitute exemption from the various requirements of this County and State. The applicant is responsible for ascertaining if permits are required and for obtaining the necessary permits such as Building Permits, Residential Use Permits and Non-Residential Use Permits. Information concerning building permits may be obtained by calling 703-222-0801 .
Sincerely, XZ; Paula A. McFar Board of Zonin
Enclosure: As stated
Department of Planning and Zoning 12055 Government Center Parkway, Suite 80 I Fairfax, Virginia 22035-5509 Phone 703 324-1 280 Excellence * Innovation * Stewardship FAX 703 324-1 207 Integrity * Teamwork * Public Service www.fairfaxcounty.gov/dp:zl COUNTY OF FAIRFAX, VIRGINIA
SPECIAL PERMIT RESOLUTION OF THE BOARD OF ZONING APPEALS
THOMAS S. CHERRY, SP 2010-PR-054 Appl. under Sect(s). 8-922 of the Zoning Ordinance to permit reduction of certain yard requirements to permit construction of addition 6.0 ft. from side lot fine. Located at 3115 Northwood Rd. on approx. 11 ,770 sq. ft. of land zoned R-3. Providence District. Tax Map 48-3 ((26)) 1. Mr. Hart moved that the Board of Zoning Appeals adopt the following resolution: ·
WHEREAS, the captioned application has been properly filed in accordance with the requirements of all applicable State and County Codes and with the by-laws of the Fairfax County Board of Zoning Appeals; and
WHEREAS, following proper notice to the public, a public hearing was held by the Board on December1 , 2010; and
WHEREAS, the Board has made the following findings of fact:
1. The applicant is the owner of the land . 2. In general the application meets the required standards for a special permit. 3. The rationale in the staff report is adopted. 4. The Board has staffs recommendation of approval. 5. The lot is very narrow. 6. The other lots iri the area are all kind of narrow, but this lot and a couple around it have very steep backyards sloping up. 7. Even if they wanted to put a driveway around the house and have a detached garage in the · rear, it is unsure how they could do that. They would have to do a lot of grading, and there would be slope issues and things. As a functional idea, it is not going to work. 8. If a house like this wants to have someplace to park the cars under a roof, it is going to be in approximately the same configuration that it is in. 9. There is a mix of carports and garages in the neighborhood. 10. The carports and garages in the neighborhood are about the same impact as each of them has a pretty substantial roof on it. 11 . Whether the side walls at one end were enclosed or not, or whether there were doors on both of the bays in front, it really did not change the bulk or the massing of it. It was more the placement of the structure and roof. 12. Many of the homes have either a two-car carport or two-car garage, and whether those structures were carports or garages did not make a whole lot of difference in terms of impact on the neighbors. Whether it was closed in or not, the ones that looked better were probably the ones that were closed in, and some of that shows in the photos, that the ones with carports sometimes have a lot of trash cans and things piled up that would otherwise be stored inside, but are on display because the carport cannot be enclosed. 13. There is not a significant negative impact from having an enclosed structure of that size compared to an open carport or something else. 14. There are different standards now for looking at this application then there were for the variance ten years ago. Under Sect. 8-922, it is somewhat easier for an applicant to satisfy the legal requirements. 15. It was thought that there was a hardship because of the topography and the narrowness of the lot. The topography was the driving circumstance at that time. The vote was four to three; however, the judge disagreed with that. THOMAS S. CHERRY, SP 2010-PR-054 PAGE2
16. The statute is clearer now that the Circuit Court can do a de novo review. 17. As far as the current application and the applicable standards for a reduction in minimum yard, all of them are satisfied. 18. In regard to Subsection 9 of 8-922, that the BZA determine that the proposed reduction represents the minimum amount of reduction necessary to accommodate the proposed structure on the lot, a garage that is 18 feet wide certainly is the minimum. 19. They asked for two more feet ten years ago that would not be allowed as a special permit, but at 18 feet, it is a permissible application. 20. There may end up being functional problems with an 18-foot wide garage but that does not necessarily prevent the Board from approving it. 21 . It may not be ideal for a two-car family, but on a lot like this, it is certainly a more reasonable request than if they were going any closer to the line. 22. The workshop in the back was a little more troublesome because of the configuration of the existing structure with the roofline coming down almost to the ground, but that is being changed. It is understandable there would be problems storing anything in a garage that is 18 feet wide and some storage space would be needed at the rear. 23. The roofline and the impact of the wall were looked at, and there is not going to be a significant negative impact, particularly on the next-door neighbor to the left, whether the garage extends back the full 32 feet or it is notched in for the last ten feet. 24. The Board does not always approve extensions that are 30-some feet long into a minimum side yard, but in this case, there is not going to be a significant impact. 25. The house next door is about the same distance from th is house as all the other houses in the neighborhood, and they are all similarly situated on the lots. 26. On that side there are windows on the upstairs but the downstairs is just a solid wall and there is a big bush there. It seems that there would not be a significant negative impact on the upstairs windows of the house next door whether the workshop notched over a few more feet or not. 27. Based on the facts before the Board, it is concluded that there would not be a significant negative impact for allowing the further extension of the workshop in the back over and above the extension of the garage. 28. Looking at the legal issue about the Bell case, there is no recollection of anyone making that argument before. Fairfax County's ability to enact an ordinance that allows certain modifications to location of structures by special permit is consistent with what the Court allowed in Bell. 29. The issue of invalidation of a local ordinance as being arguably inconsistent with what the General Assembly has authorized is a matter for the Circuit Court to decide and not the Board of Zoning Appeals. 30. It is not the Board's function to invalidate the local ordinance and determine that the Board of Supervisors has gone beyond what the General Assembly allowed. 31 . People argue covenants to the BZA, but the BZA is not allowed to reach those issues. A covenant is a private matter between private parties. There may be questions about whether the covenants are valid or enforceable or which lots can enforce the covenants against which other lots, but these two lots seem to be in different sections of the same subdivision. 32. The Board does not reach those covenant issues. That is for a court to decide, and if the neighborhood association or neighbors take it to court, and a judge gets into that, those issues would not be affected by a zoning approval. If the covenants preclude this for some reason, the Board is not changing that, and a judge can sort that out. THOMAS S. CHERRY, SP 201 O-PR-054 PAGE 3
33. With the imposition of the development conditions recommended by staff, the potential impacts of the structure have been satisfactorily mitigated. 34. A specific reference is made to the drawings, that they are consistent with the other structures. Most of the houses on the street seem to be one of two. There was sort of a two-story house and a split-level house, and they all sort of had the carport or the garage to the side. 35. What is proposed in terms of the architecture and the materials is very much consistent with what is already there, whether it is a carport with a roof on it, or some people have enclosed them. 36. The Board has done a case-by-case review. 37. The Board has listened to the professional staffs recommendation and their conclusions about whether the application satisfies the Ordinance. 38. The Board agrees with those conclusions, and with those additional findings of fact, the applicant has cleared all the hurdles.
AND WHEREAS, the Board of Zoning Appeals has reached the following conclusions of law:
THAT the applicant has presented testimony indicating compliance with the general standards for Special Permit Uses as set forth in Sect. 8-006 and the additional standards for this use as contained in the Zoning Ordinance.
NOW, THEREFORE, BE IT RESOLVED that the subject application is APPROVED with the following limitations:
1. These conditions shall be record ed by the applicant among the land records of Fairfax County for this lot prior to the issuance of a building permit. A certified copy of the recorded conditions shall be provided to the Zoning Permit Review Branch, Department of Planning and Zoning.
2. This special permit is approved for the location and size of a one-story garage and workshop addition (approximately 590 square feet), as shown on the plat prepared by Alexandria SuNeys International, LLC, dated January 12, 2010, as submitted with this application and is not transferable to other land.
3. Pursuant to Paragraph 4 of Section 8-922 of the Zoning Ordinance, the resulting gross floor area of an addition to the existing principal structure may be up to 150 percent of the gross floor area of the dwelling that existed at the time of the first expansion (2,500 square feet existing + 3, 750 square feet (150%) =6 ,250 sq uare feet maximum permitted on lot) regardless of whether such addition complies with the minimum yard requirement or is the subject of a subsequent yard reduction special permit. Notwithstanding the definition of gross floor area as set forth in the Ordinance, the gross floor area of a single family dwelling for the purpose of this paragraph sl)all be deemed to include the floor area of any attached garage. Subsequent additions that meet minimum yard requirements shall be permitted without an amendment to this special permit.
4. The addition shall be consistent with the architectural renderings and materials as shown on Attachment 1 to these conditions. THOMAS S. CHERRY, SP 201O-PR-054 PAGE4
This approval, contingent upon the above-noted conditions, shall not relieve the applicant from compliance with the provisions of any applicable ordinances, regu lations or adopted standards.
Pursuant to Sect. 8-015 of the Zoning Ordinance, this special permit shall automatically expire, without notice, thirty (30) months after the date of approval unless construction has commenced and has been diligently prosecuted. The Board of Zoning Appeals may grant additional time to commence construction if a written request for additional time is filed with the Zoning Administrator prior to the date of expiration of the special permit. The request must specify the amount of additional time requested, the basis for the amount of time requested and an explanation of why additional time is required.
Mr. Byers seconded the motion, which carried by a vote of 6-0. Mr. Smith was absent from the meeting.
ACKNOWLEDGEMENT
County of Fairfax Commonwealth of Virginia
The foregoing instrument was acknowledged before me this --~--- day of
Commonwealth of Virginia Notary'PUbiiC Homaira Amin - Notary Public Commission No. 71 96278 My commission expires: o?tf 't I /20 (2.. My Commission Expires 07/31/201 2 ATTACHMENT 1
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Scale: 1/8" = 1'-0" 3115 Northwood Road Fairfax, VA 22031 • r 3115 Northwood Road Fairfax, VA 22031 v 6' Setback v 12' Setback Screened Porch 12'-0" ~ = Existing Carport
[]J] = Garage Addition 18'-0"
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·--·-· Homes In Villa D'Este (sections 2 and 3)
Lot# Name on Toco Map Number Street Model Garaoe/Carcort Lot Size Comments Potter 9907 Bamsburv Ct Colonial 2 caraa"""e 17.963 Sesow 9909 BamsburvCt Colonial 2 car garage 11 .467 McCann 991 4 Bamsburv Ct Colonial 2 car aaraae 13,691 Mur1ev 9915 Bamsburv Ct Colonial 2 car garage 20.570 Davos 9916 Bamsburv Ct Colonial 2 car aaraae 13.460 Sheoard 9919 Bamsbury Ct Colonial 2 car garage 12.252 Neff 9920 Bamsburv Ct Colonial 2 car aaraoe 13,979 Hansen 9929 Bamsburv Ct Colonial 2 car garage 12,566 Patterson 3105 Northwood Rd Colonial 2 car aaraae 14,993 McDonald 3117 Northwood Rd Colonial 2 car aaraae 10976 Lemond es 9926 Bamsburv Ct Split 2 car aaraae 10,986 Kim 9927 Bamsburv Ct Solit 2 car aaraae 19,023 Volclak 9926 Bamsburv Ct Split 2 car garage 16,961 Brosnan 9906 Bamsburv Ct Colonial 2 car cancan 12,123 Eberhart 9911 Bamsburv Ct Colonial 2 car carport 17,978 Miller 9917 Bamsburv Ct Colonial 2 car carcort 14.437 RICl'lardson 9921 Bamsburv Ct Colonial 2 car carcort 11 ,745 James 9922 Bamsburv Ct Colonial 2 car carport 13,634 Helms 9923 Bamsburv Ct Colonial 2 car carcort 13,020 Peruaini 9905 Five Oaks Rd Colonial 2 car carport 14,111 Hrinko 3100 Northwood Rd Colonial 2 car carcort 12.704 Bowman 3102 Northwood Rd Colonial 2 car carcort 10,613 Penote 3106 Northwood Rd Colonial 2 car carcort 10,730 Raooold 3106 Northwood Rd Colonial 2 car carcort 11 .156 Cn.rtel1field 3111 Northwood Rd Colonial 2 car carcort 12,604 Stacv 3112 Northwood Rd Colonial 2 car caroort 11 ,049 Weidman 3113 Northwood Rd Colonial 2 car caroon 11 ,633 Mar1dev 3119 Northwood Rd Colonial 2 car carcort 10,943 Coleman 9903 Five Oaks Rd Split 2 car carcort 11.621 Teter 9913 Bamsbury Ct Split 1 car oarage 30,002 Combs 23 9908 Bamsburv Ct Solit 1 car cancort 10,767 level lot, unusual shape, ooal in rear yard. may need soecial oermit Denni no 16 9924 Bamsburv Ct Solit 1 car carcort 14,340 level lot McCumin 13 9925 Bamsburv Ct Split 1 car carcort 15,370 level lot Mie11aels 3 3103 Northwood Rd Sol it 1 carcarcort 16.567 level lot, special permit not necessarv accordina to owners I sufficient side vardl steep decline at rear property line with retaining wall, mostly level lot, but shallow, Alaer 13 3104 Northwood Rd Sol it 1 car carcort 10,604 mav need special permit Kedrock 5 3107 Northwood Rd Split 1 carcarport 14 ,909 level lot Stea maier 6 3109 Northwood Rd Sol it 1 carcancort 14 ,060 level lot Jamieson 10 3110 Northwood Rd Split 1 car carcort 12,173 level lot Cherrv 1 3115 Northwood Rd Split 1 car carport 11 ,770 SUBJECT PROPERTY
Note: Gray shading denotes ad1oining properties to 3115 Northwood Rd
Number of Houses 39
Split Levels 14 1 car carports 9 23% 36% 1 car garages 3% 2 car carports 1 3% 2 car garages 3 8%
Colonials 25 1 car carports 64% 1 car garages 2 car carports 15 38% 2 car garages 10 26%
have covered parking for 2 or more vehicles 29 74%
have 2-car garages 13 33% Crimes Reported in Census Tract 619.02 January 2006 - Novemb r 2010 \ Specifically west of Water Oak Drive to include portions of Five Oaks Road, Savoy Drive, Northwood Road/Platten Road, Barnsbury Court, Barley Road and Cyrandall Valley Road
CASE NUMBER INCIDENT TYPE DATE ADDRESS 2006015000908 Stolen Vehicle I Recovered Stolen Vehicle 1/15/06 10:18 AM 10000 Blk FIVE OAKS RD 2006032002339 Assault 2/1/06 04:13 PM 9800 Blk FIVE OAKS RD 2006030002777 Larceny 1/30/06 08:31 PM 9800 Blk FIVE OAKS RD 2006318000881 Larceny 11 /14/06 08:49 AM 3000 Blk PLATIEN DR 200701 4001831 Stolen Vehicle I Recovered Stolen Vehicle 1/ 14/07 07:45 PM 9900 Blk BARNSBURY CT 2007021000181 Assault 1/21 /07 01 :49 AM 9800 Blk FIVE OAKS RD 2007101001467 Destruction 4/11 /07 12:20 PM 9800 Blk FIVE OAKS RD 2007165002463 Burglary 6/14/07 05:22 PM 9900 Blk BARNSBURY CT 2007191002125 Burglary 7/10/07 04:18 PM 3100 Blk NORTHWOOD RD 2007226002298 Sex Offense 8/14/07 06:10 PM 3000 Blk CYRANDALL VALLEY RD 2007256001347 Destruction 9/13/07 11 : 10 AM 10000 Blk FIVE OAKS RD 2008025002312 Larceny 1/25/08 05:59 PM 3000 Blk PLATIEN DR 2008056001137 Destruction 2125108 09:46 AM 3000 Blk CYRANDALL VALLEY RD 2008289001194 Larceny 10/15/08 09:39 AM 3100 Blk SAVOY DR 2008289001204 Larceny 10/15/08 09:43 AM 3100 Blk SAVOY DR 2009071002865 Destruction 3/12/09 07:04 PM 3100 Blk SAVOY DR 2009182002533 Larceny 7/1/09 06:12 PM 3100 Blk SAVOY DR 2009179001001 Larceny 6128109 10:36 AM 9900 Blk BARNSBURY CT 2009182002533 Larceny 7/1/09 06:12 PM 3100 Blk SAVOY DR 2009220002160 Vehicle Tampering 818109 05:17 PM 3100 Blk NORTHWOOD RD 20092200011 63 Burglary 818109 11 :01 AM 3000 Blk SAVOY DR 2009220000850 Larceny 818109 08:29 AM 3000 Blk PLATIEN DR 2009220000934 Vehicle Tampering 818109 09:09 AM 9900 Blk BARNSBURY CT 2009257001764 Larceny 9/14/09 01 :37 PM 3000 Blk PLATIEN DR E100121005 Larceny 1/12/10 09:30 AM 9800 FIVE OAKS RD E101001449 Burglary 4/10/10 03:18 PM 9800 FIVE OAKS RD E102750265 Burglary 10/2/10 02:27 AM 3100 BARLEY RD
Source: Fairfax County website Crime Mapping application http://www.fairfaxcounty.gov/gisapps/myneighborhood/mynpolice.aspx
Note: These statistics do not include significant numbers of crimes reported in the condominiums, cooperative housing apartments, and townhouses along Kingsbridge Road within very short walking distance to our h9me.
Page 1 Area Included in Crime Statistics January 2006 - November 2010
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Bell v. City Council, 224 Va. 490, 297 S.E.2d 8 JO (1982)
IN THE SUPREME COURT OF VIRGINIA
MALCOLM L. BELL, ID, ET AL. v. CITY COUNCIL OF THE CITY OF CHARLOTTESVILLE, ET AL.
Record No. 801122. Decided: December 3, 1982.
Present: All the Justices.
Amendments to Charlottesville zoning regulations, changing City Code§ 3 1-33, adding§ 31-228.1, and changing City Code § 31 -140. l applying specifically to historic district, are valid under "fairly debatable" rule; other issues.
(1) Cities, Counties and Towns - Zoning - Validity - Burden of Proof - Evidence - Zoning Ordinance Presumed Valid But Presumption of Validity Rebutted by Evidence of Unreasonableness.
(2) Cities, Counties and Towns - Zoning - Validity - Burden of Proof - Evidence - Ordinance will be Sustained When Reasonableness Fairly Debatable.
(3) Cities, Counties and Towns - Zoning - Validity - Borden of Proof - Evidence - "Fairly Debatable" Role - Stated.
(4) Cities, Counties and Towns - Zoning - Validity - Borden of Proof - Evidence - "Fairly Debatable" Role Applied to Sustain Amendments to Charlottesville City Code Provisions Applicable to Historic Preservation District as Reasonable.
(5) Cities, Counties and Towns - Zoning - Validity - Zoning Ordinances Generally, Etc. (Code§ 15.1-486 et seq.) Permitted Provisions in Ordinances, Special Exceptions - Code § 15.1-491(c)] - Powers and Duties of Board of Zoning Appeals, Variances (Code§ 15.1-495) - Charlottesville City Code§ 31-228.1 - Statutory Construction - City Code Provides Adequate Protection in Issue of Permits for Special Exceptions, and is Permitted Under Code§ 15.1-491(c) and not Precluded by Code§ 15.1-495.
(6) Cities, Counties and Towns - Zoning - Validity - Regulations to be Uniform (Code § 15.1-488) - Charlottesville City Code§ 31-140.1 - Constitutional Law - Equal Protection - Statutory Construction - Code§ 15.1- 488 Expresses Equal Protection Doctrine and Charlottesville Code§ 31-140.1 Establishing Special Height Limitations in Part of Historic District Rationally Related to Permissible State Objective, is Reasonable and is Valid.
In 1975, Charlottesville established an Architectural Design Control and Historic Preservation (ADC) District to provide fo r the preservation of architectural [Page 491) and historic landmarks within the City. A Board of Architectural Review was established and empowered to review the appropriateness of all new construction in the District. When a church within the District burned, its trustees contracted to sell the land to Fisher, contingent upon obtaining changes in the zoning ordinance which would permit condominiums to be constructed on the site. Fisher sought changes in the zoning regulations to al low a density of 80 units per acre, no setback requirement, and a height of 75 feet.
In 1978, the City Council adopted three amendments to the zoning regulations. The first amendment revised Charlottesville Code § 31-33 permitting a density of up to 87 units per acre in B-1 districts by special permit. The second amendment added Code § 31 -228.1 providing, under certain conditions, for the allowance of permits to modify the setback and density requirements of the zoning ordinance. The third amendment, applying specifically to the Historic District, changed City Code § 31-140.1 to provide that a special permit could be issued to allow building hei ghts of up to 75 feet in the portion of the Historic District lying south of Hi gh Street, so long as the proposed project encompassed an entire city block. This permit could only be issued if the height was appropriate to the location in question, did not have an undue adverse impact on the scale and architectural harmony of the District, and would permit adequate sunlight and open air to adjacent properties.
Thereafter, the C. F. Corporation, acquired title to the land and requested special permits under the amendments. After review by the Board of Architectural Review and the Planning Commission, the City Council approved the special permits necessary for the project. The Board of Architectural Review then denied the corporation's request for a certificate of appropriateness for the building, but this decision was reversed by City Council.
The plaintiffs filed suit against the City and the developer to have the amendments and special permit declared invalid and to stop construction of the project. The Trial Court held the amendments and permits were valid. This appeal ensued. l. A zoning ordinance is presume d, but this presumption can be rebutted bye ce of unreasonableness. 2. When evidence of reasonableness is presented to make the issue of validity 01 UJe zoning ordi nance fairly debatable, the ordinance will be sustained. 3. The reasonableness of an ordinance is fairly debatable when the evidence offered to support the opposing views would lead objective and reasonable persons to reach different conclusions. 4. Here, insufficient evidence was presented to show that the amendments to the zoning ordinance were unreasonable and, assuming appellants presented some evidence of unreasonableness, there is sufficient evidence on both sides to make the issue fairly debatable. The ordinance thus must be sustained. [Page 492) 5. While the state enabling legislation (Code§ 15. 1-486 et seq.) distinguishes between variances and special exceptions, nothing in the enabling act prevents the alteration of setback and height requirements as part of the issuance of a special exception, Charlottesville City Code § 31-228. I establishing standards providing adequate protection in the issuance of permits for special exceptions as required by Code§ 15.l-49l(c) and there being no conflict with Code§ 15.1-495 establishing standards for variances. 6. Code § 15.1-488, requiring zoning regulations to be uniform, is a statutory reaffirmation of the equal protection doctrine. There is a rational relation between the height limitations established by Charlottesville City Code§ 31-140.l in the Historic Preservation District and those in other portions of the District and a permissible state objective. Such distinctions are reasonable on the facts and City Code§ 31-140.l is valid.
Appeal from a judgment of the Circuit Court of the City of Charlottesvi lle. Hon. Herbert A. Pickford, III, judge presiding.
Affirmed.
Paul M. Peatross, Jr. (Carter and Peatross, on briefs), for appellants.
Roger C. Wiley, Jr., City Attorney (Jonathan S. Lynn; Lewis A. Martin, Jr.; Martin, Walker, Jones, Lawrence & Lynn, P.C.; Martin & Martin, on briefs), for appellees.
STEPHENSON, J., delivered the opinion of the Court.
This appeal involves a challenge to the validity of certain amendments to the City of Charlottesville's zoning ordinance. The appellants claim these amendments are inconsistent with good zoning practices, al low the City Council to exceed its statutory authority in granting special permits, and violate the uniformity requirement of Code§ 15.1-488.
The essential facts are undisputed. In 1975, Charlottesville, acting pursuant to Code § 15.1-503.2, established an Architectural Design Control and Historic Preservation (ADC) District This District provides for the preservation of architectural and historic landmarks within the City. A Board of Architectural Review was established and empowered to review the appropriateness of all new construction in the District. The District encompasses both business and residential zones in the downtown area
The First Baptist Church was located within the ADC District in an area zoned B-1. The church was destroyed by fire, and, in [Page 493) October, 1977, its trustees contracted to sell the land to Carl Fisher, a real estate developer. Fisher wished to build a condominium project on the site, and the contract was made contingent upon obtaining changes in the zoning ordinance which would allow the project to proceed.
Under the zoning ordinance then in effect, residential density in a B-1 zone was limited to 21 units per acre, and buildings were required to have a 20-foot setback from the front property line. Further, all buildings within the ADC District were limited to 40 feet in height. In order to build the project, Fisher sought changes in the zoning regulations to allow a density of 80 units per acre, no setback requirement, and a height of 75 feet.
The church trustees contacted the City Council about the proposed sale. The City, through its Planning Director and City Manager, cooperated with the church and the developer in seeking the proposed changes. In January, 1978, the Council adopted three amendments which are the subject of the present suit.
Section 31-33 of the City Code was amended to permit a density of up to 87 units per acre in B-1 districts by special permit. Prior to this time, this density was allowed by permit in B-3, B-4, and R-3 districts. Several Council members expressed surprise that the higher density was not previously allowed in B- 1 districts, since it was their impression that all residential uses could take place in business districts. The Planning Director could not explain why the Code did not previously provide for this use in B- 1 districts.
A second amendment added § 31-228. l to the City Code. The City Code had previously permitted the issuance of special permits under specified conditions, as allowed by the state enabling act. Code§ 15.1-491. The new section provides that, under certain enumerated conditions, a pennit can modify the setback and density requirements of the zoning ordinance. This amendment was designed to provide greater flexibility in the construction of new projects in the City.
The third amendment was the onJ y one which applied specifically to the ADC District. It changed City Code§ 3 1-140.1 to provide that a speciaJ permit can sued lo aJJow building heights of up lo 75 in the portion of the ADC Dislrict lying south of Hi gh Streel, provided the pr posed project encompasses an entire city bloc permit can only be issued if the height is appropriate to the location in question, does not have an undue [Page 494] adverse impact on the scale and architectural harmony of the District, and would permit adequate sunlight and open air lo adjacent properties.
City Council members testified they were very concerned that any new project harmonize with existing buildings in the District. As proposed, the originaJ amendment to City Code § 31- 140. l would have allowed the additional height in any portion of the District. The restriction limiting 75-foot buildings to full city blocks south of Hi gh Street was added at the suggestion of a participant al the public hearing on the amendments, who subsequently became a plaintiff in this suit. The restriction is designed to protect the District by limiting tall buildings to its more commercial portion. By li miting these projects to a full city block, the amendment assures that they will not dwarf adjacent properties.
Subsequent to these amendments, the C. F. Corporation, assignee of Carl Fisher, acquired title to the land and requested the special permits contemplated under the amendments. After review by the Board of Architectural Review and the Planning Commission, the City Council approved the special permits necessary for the project. The Board of Architectural Review then denied the corporation's request for a certificate of appropriateness for the building. However, this decision was reversed by the City Council.
The plaintiffs filed suit against the City and the developer to have the amendments and special permit declared invalid and to stop construction of the project (Of the originaJ plaintiffs, only Malcolm L. Bell, III, and Velora Thomson (collectively, Bell) appealed.) Following a hearing, the trial court held the amendments and permit were val id.!
Bell attacks the amendments as being facially invalid because they are inconsistent with good zoning practices. ln addition to contending that the amendments Jack uniformity and are in excess of statutory authority, which arguments are considered below, Bell alleges the amendments are contrary to the 1990 land use plan of the City, permit heights which are incompatible with the surrounding area, usurp the powers of the Board of Architectural Review, and generally do not comply with Code§ 15.1-490, which outlines the factors to be considered in the adoption of zoning ordinances. [Page 495]
[l-3] We have often stated the standard to be used in ruling on a challenge to a zoning ordinance. An ordinance is entitled to a presumption of legislative validity. This presumption can be rebutted by evidence of unreasonableness. However, when evidence of reasonableness is presented to make the issue fairly debatable, the ordinance will be sustained. Henrico County v. F. & W., Inc., 222 Va. 218, 224, 278 S.E.2d 859, 862 ( 1981); Fairfax County v. Snell Corp., 214 Va. 655, 659, 202 S.E.2d 889, 892- 93 (1974). The reasonableness of an ordinance is fairly debatable "when the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions." Fairfax County v. Williams, 216 Ya. 49, 58, 216 S.E.2d 33, 40 (1975).
[4] In the present case, appellants did not present sufficient evidence to show the amendments were unreasonable and thus failed to rebut the presumption of validity. Ample evidence was presented thal, in adopting the amendments, the City Council considered the character of the property, the existing land use plan, the general welfare of the public, and the economic development of the community. Further, the Council took into account the peculiar requirements of the ADC District. In making its decision, the Council had before it studies of the heights and setbacks of surrounding buildings, a study made by the University of Virginia School of Architecture of the impact of a 75 foot building on the area, and other materials provided by the developer, the Planning Commission, and interested citizens. Even assuming the appellants presented some evidence of the unreasonableness of the amendments, there is sufficient evidence on both sides of the question to mak:e it fairly debatable, and, under this circumstance, the ordinance must be sustained.
[5] In a second argument, Bell contends the amendment adding§ 31-228.l to the City Code exceeds the authority given the City by the state enabling act, Code§ 15 .1 -486, et seq. The act specifically empowers a city to grant special exceptions or use permits. Code§ 15.I-49l(c). It merely provides that these permits must be granted under "suitable regulations and safeguards." Id. See also Cole v. City Council, 218 Va. 827, 241 S.E.2d 765 ( 1978). The City Code provides that any construction allowed by special permit must conform with the City's comprehensive plans and policies and must not have an undue adverse impact on the surrounding neighborhood. City Code§ 31-220. The new section, 31-228.l, [Page 496] provides that in granting a special permit the City Council can modify setback and density regulations, provided the modification is in harmony with the zoning ordinance and is necessary or desirable in view of the particular ci rcumstances of the project. These standards provide adequate protection in the issuance of permits.
The state enabling legislation does distinguish between variances and special exceptions. A variance may be granted when the location or shape of the property or other special circumstances would create a hardship if the zoning ordinance was strictly enforced. It allows a property owner to do what is otherwise not allowed under the ordinance. Fairfax County v. Southland Corp., 224 Ya. 514, 522 n.2, 297 S.E.2d 22 ( 1982). In contrast, a special exception ot allow a landowner to do something in violation of the ordinance. Instead, e property may be developed in a way consiste ith the ordinance, but only with approval of the City after specified conditions are met. Id. at 521 -22, 297 S.E.2d at 722. Nothing in the enabling act prevents the alteration of setback and height requirements as part of the issuance of a special exception.
[6] In his third argument, Bell contends the amendment to City Code§ 31- 140. l violates the uniformity requirement of Code § 15.1-4882 since it only applies to a portion of the ADC District. We reject this argument. The special permit procedure, by its very nature, presupposes that a given use may be allowed in one part of a zoning district, but not in another. Harding v. Board of Zoning Appeals. 219 S.E.2d 324, 328 (W.Ya. 1975).
Code § 15.1-488 is in reality a statutory reaffirmation of the equal protection of the law guaranteed to all persons by the Fourteenth [Page 497] Amendment to the Constitution. In City of Manassas v. Rosson, 224 Ya. 12, 294 S.E.2d 799 (1982), we rejected an equal protection argument and held that a zoning regulation is valid if it is reasonable and bears a rational relationship to a permissible state objective. The rational basis for City Code § 31-140. l is clear. The Council wished to restrict tall buildings to the more commercial parts of the ADC District in order to protect the character of the District and the residential neighborhood north of High Street. In fact, the amendment was proposed, not by the developer, but by a plaintiff in this suit who was concerned with protecting the District. The appellants, who on one hand wish to limit the height of all buildings in the District, on the other hand attack the regulations enacted by the City to severely limit taller buildings and thereby protect the character of the District A rational basis exists for this amendment to the City ordinance, and it will therefore be upheld.
For the reasons stated, we are of opinion that the challenged amendments to the City zoning ordinance are valid. Accordingly, the judgment of the trial court will be affirmed.
Affirmed.
FOOTNOTES
1 The trial court also held the appellants lacked standing to attack the validity of the amendments and permit. However, for the purpose of this appeal, we will assume, without deciding, that they have standing.
2 Code§ 15.1-488 reads as follows:
All such regulations shall be uniform for each class or kind of buildings and uses throughout each district, but the regulations in one district may differ from those in other districts. JUN 2 4 1981 CODE OF VIRGINIA 1950 With Provision for Subsequent Pocket Parts
ANNOTATED
Prepared under the Supervision of The Virginia Code Commission BY The Editorial Staff of the Publishers Under the Direction of
D. P . HARRIMAN, S. c. WILLARD, SYLVIA FAULKNER, AND ELIZABETH E. PINCUS
VOLUME3A
1981 R EPLACEMENT VOLUME
(Including Acts of the 1981 Session and annotations taken from South Eastern Reporter, 2d Series, through Volume 274, page 313.)
THE MICHIE COMPANY Law Publishers 1= &IRFAl COUlfff fAW UBRAR~ _.
§ 15.1-491 CODE OF VIRGINIA § 15.1-491
era! boundary guidelines of a comprehensive ordinance, see Board of Supvrs. v. Snell plan but also location of property lines, physical Constr. Corp., 214 Va. 655, 202 S.E.2d 889 characteristics of the land, and other factors (1974). affecting optimum geographical alignment. Applied in Matthews v. Board of Zoning Board ofSupvrs. v. Snell Constr. Corp., 214 Va. Appeals, 218 Va. 270, 237 S.E.2d 128 (1977); I 655, 202 S.E.2d 889 (1974). Town of Vienna Council v. Kohler, 218 Va. 966, As to validity of piecemeal downzoning 244 S.E.2d 542 Cl978l.
§ 15.1-491. P ermitted p rovisions in ordinances; amendments. - A zoning ordinance may include, among other things, reasonable regulations and provisions as to any or all of the following matters: (a) For variations in or exceptions to the general regulations in any district in cases of unusual situations or to ease the transition from one district to another or for buildings, structures or uses having special requirements, and for the adoption, in counties, or towns therein which have planning commis sions, wherein the urban county executive form of government is in effect, or in a city completely surrounded by such a county, or in a county contiguous to any such county, or in a city completely surrounded by such a contiguous county, and in the counties east of the Chesapeake Bay as a part of an amend ment to the zoning map of reasonable conditions, in addition to the regulations provided for the zoning district by the ordinance, when such conditions shall have been proffered in writing, in advance of the public hearing before the governing body required by § 15.1-493 by the owner of the property which is the subject of the proposed zoning map amendment. Once proffer ed and accerted as part of an amendment to the zoning ordinance, such conditions shal continue in full force and effect until a subsequent amendment changes the zoning on the property covered by such conditions; provided, however, that such conditions shall continue if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning ordinance. (b) For the temporary application of the ordinance to any property coming into the territorial jurisdiction of the governing body by annexation or otherwise, subsequent to the adoption of the zoning ordinance, and pending the orderly amendment of the ordinance. (c) For the granting of special exceptions under suitable regulations and safeguards; and notwithstanding any other provisions of this article, the ~ove rnin g body.of any city, county or tow:i may reserve unto itself the right to issue such special exception or use permit. (d) For the administration and enforcement of the ordinance including the appointment or designation of a zoning administrator who may also hold an other office in the county or municipality. The zoning administrator shall have all necessary authority on behalf of the governing body to administer and enforce the zoning ordinance, including the ordering in writing of the r em edying of any condition found in violation of the ordinance, and the bringing of legal action to insure compliance with the ordinance, including injunction, abatement, or other appr opriate action or proceeding. (e) For the imposition of penalties upon conviction of any violation of the zoning ordinance. Any such violation shall be a misdemeanor punishable by a fine of not less than ten dollars nor more than one thousand dollars. (f) For the collection of fees to cover the cost of making inspections, issuing permits, advertising of notices and other expenses incident to the administra tion of a zoning ordinance or to the filing or processing of any appeal or amendment thereto. (g) For the amendment of the regulations or district maps from time to time, or for their repeal. Whenever the public necessity, convenience, general wel far e, or good zoning practice require, the governing body may by ordinance, amend, supplement, or change the regulations, district boundaries, or classifi- 228 § 15.1-430 § 15.1-431 COUNTIES, CITIES AND TOWNS § 15.1-431
id proposed public (r) "Mixed use development" means property under a single ownership and rerning body of a legal description that incorporates two or more different u.ses, and may ions of Article 5 include a variety of housing types, within a single development. (s) "Planned unit development" means a form of development characterized ociation. by unified site design for a variety of housing types and densities, clustering of buildings, common open space, and a mix of building types and land uses in oad, lane, alley, or which project planning and density calculation are performed for the entire development rather than on an individual lot basis. not permitted in a (t) "Incentive zomng" means the use of bonuses in the form of increased 1der the provisions project density or other benefits to a developer in return for the developer Nith. providing certain features or amenities desired by the locality within the planning agency development. (Code 1950, § 15-961.3; 1962, c. 407; 1964, c. 547; 1966, c. 344; 15.1-1400 et seq.). 1975, c. 641; 1976, c. 642; 1977, c. 566; 1978, c. 320; 1987, c. 8; 1989, c. 384.) ing land within a md districts being Cross references. - As to application and "Virginia Subdivision Law: An Unreasonable he prescribing and construction of the 1978 amendment to this Burden on the Unwary," see 34 Wash. & Lee L. ning building and section, see the note to § 15.1-491.1. Rev. 1223 (1977). For survey of Virginia law on .ses to which land, The 1989 ame ndment added subdivisions municipal corpor ations for the year 1977-1978, d districts may be (r) through (t). see 64 Va. L. Rev. 1487 (1978). For article on Law Review. - For survey of Virginia law conditional zoning in Virginia, see 16 U. Rich. on land use planning for the year 1974-1975, L. Rev. 117 (1982). :>rdinance adopted see 61 Va. L. Rev. 1769 (197 5). For note, land into three or -pose of transfer of § 15.1-431. Advertisement of p lans, ordinances, etc.; joint public ; involved in such hearings; written notice of certain amendments. - Plans or ordinances or resubdivision and, amendments thereof, recommended or adopted under the powers conferred by ~ of subdividing or this chapter need not be advertised in full, but may be advertised by :i.tion of any single reference. Every such advertisement shall contain a r eference to the place or division shall be places within the county or municipality where copies of the proposed plans, ordinances or amendments may be examined. > be developed as a The local commission shall not recommend nor the governing body adopt ;o be u.sed for any any plan, ordinance or amendment until notice of intention so to do has been · more residential published once a week for two successive weeks in some newspaper published ued to include any or having general circulation in such county or municipality; provided, that al production. such notice for both the local commission and the governing body may be sentation of land published concurrently. Such notice shall specify the time and place of hearing at which persons affected may appear and present their views, not "' " ; or a subdivision less than six days nor more than twenty-one days after the second advertise tditions relating to ment shall appear in such newspaper. The local commission and governing ~nt, common open body may hold a joint public hearing after public notice as set forth required by the hereinabove. If such joint bearing is held, then public notice as set forth above t or subdivision is need be given only by the governing body. The term two successive weeks as used in this paragraph shall mean that such notice shall be published at least dinance, a reason twice in such newspaper with not less than six days elapsing between the first :>r area of a lot or and second publication. tlding or structure When a proposed amendment of the zoning ordinance involves a change in in unnecessary or the zoning classification of twenty-five or less parcels ofland, then, in addition eed for a variance to the advertising as above required, written notice shall be given by the local ided such variance commission at least five days before the bearing to the owner or owners, their linance, and would agent or the occupant, of each parcel involved, and to t he owners, their agent ie a change in use or the occupant, of all abutting property and property immediately across the ~onditional zoning. street or road from the property affected. In any county or municipality where lg land within a notice is required under the provisions of this section, notice shall also be lative action, the given to the owner, their agent or the occupant, of all abutting property and lch property, such property immediately across the street from the property affected which lies ations provided for in an adjoining county or municipality of the Commonwealth. Notice sent by .g ordinance. registered or certified mail to the last known address of such owner as shown
235 § 15.1-491 § 15.1-491 COUNTIES, CITIES AND TOWNS § 15.1-491 vrs. v. Snell cations of property. Any such amendment may be initiated by resolution of the 12 S.E.2d 889 governing body, or by motion of the local commission, or by petition of any property owner addressed to the governing body or the local commission, who ird of Zoning shall forward such petition to the governing body; provided, that the ordinance !d 128 (1977); may provide for the consideration of proposed amendments only at specified ~. 218 Va. 966, intervals of time, and may further provide that substantially the same petition will not be reconsidered within a specific period, not exceeding one year. Any such resolution or motion by such governing body or commission proposing the ents. - A rezoning shall state the above public purposes therefor. lations and In any county having adopted such zoning ordinance all motions, resolutions or petitions for amendment to the zoning ordinance, and/or map, pending on my district July one, nineteen hundred seventy-four, shall be acted upon and a decision district to made on or before December thirty-one, nineteen hundred seventy-five; all of ments, and such motions, resolutions or petitions accepted for filing after July one, 1g commis nineteen hundred seventy-four, but /rior to July one, nineteen hundred .n effect, or seventy-five shall be acted upon an a decision made on or before June otiguous to thirtieth, nineteen hundred seventy-six; all such motions, r esolutions or peti contiguous tions accepted for filing after J uly one, nineteen hundred seventy-five, shall be an amend acted upon and a decision made within such reasonable time as may be neces ~egulations sary which shall not exceed twelve months, unless accepted for filing prior to itions shall December thirty-one, nineteen hundred seventy-five, in which case they shall before the be acted upon and a decision made on or before December thirty-one, nineteen ty which is hundred seventy-six. ·ffered and (h) For the submission and approval of a plan of development prior to the conditions issuance of building permits to assure compliance with regulations contained nt changes in such zoning ordinance. never, that The ordinance may also provide that petitions brought by property owners . part of a or their agents shall be sworn to under oath before a notary public or other ;ed zoning official before whom oaths may be taken, stating whether or not any member of the local commission or governing body has any interest in such property, rty coming either individually, by ownership of stock in a corporation owning such land, exation or or partnership, or whether a member of the immediate household of any mem 1ending the ber of the commission or governing body has any such interest. (Code 1950 (Suppl.),§ 15-968.5; 1962, c. 407; 1964, c. 564; 1966, c. 455; 1968, cc. 543, 595; ations and 1973,c. 286; 1974,c.547; 1975,cc.99,575,579, 582,641;1976, cc.71,409, 470, 1rticle, the 683; 1977, c. 177; 1978, c. 543; 1979, c. 182.) ;he right to Law Review. - For survey of Virginia law approval of a subdivision plat, that the devel :luding the on municipal corporations for the year oper construct improvements to existing public ;o hold an 1975-1976, see 62 Va. L. Rev. 1455 (1976). For highways that abut the subdivision. Hylton En shall have article entitled, "Upzoning, Public Policy, and terprises, Inc. v. Board of Supvrs., 220 Va. 435, nister and Fairness," see 17 Wm. & Mary L. Rev. 701 258 S.E.2d 577 (1979). (1976). For survey of Virginia law on municipal ,f the rem Standards for administering zoning corporations for the year 1977-1978. see 64 Va . ordinances required. - The courts, in .e bringing L. Rev. 1487 (1978). injunction, passing on zoning ordinances, have firmly Wide discretion in enacting zoning. - established the rule that where such ordinances Local governing bodies, because of their knowl grant discretionary power for their administra tion of the edge of local conditions and the needs of their tion, there must be provided standards for the ;hable by a individual communities, are allowed wide guidance of the administering authority. rs. discretion in the enactment and amendment of Byrum v. Board of Supvrs., 217 Va. 37, 225 ns, issuing zoning ordinances. A court should not substi S.E.2d 369 (1976). d.ministra- tute its judgment for that of the local legislative Because there must be a uniform applica body unless there has been a clear abuse of appeal or tion of the regulations, so that the discretion power. Byrum v. Board of Supvrs., 217 Va. 37, vested by the ordinance will not be arbitrary, 225 S.E.2d 369 (1976). ne to time, and so that the benefits of the discretion will :neral wel No authority to require improvements to · not be bestowed on some and denied to others ordinance, public highways. - A county did not have the under like circumstances. Byrum v. Board of or classifi- authority to require, as a prerequisite to Supvrs., 217 Va. 37, 225 S.E.2d 369 (1976). 229 .. CODE OF VIRGINIA 1950 With Provision for Subsequent Pocket P arts
ANNOTATED
Prepar ed under the Supervision of The Virginia Code Commission BY The Editorial Staff of the Publishers Under the Direction of
A. D. KowALSKY, S. C. WILLARD, K. S. :MAWYER AND T. R. TROXELL
VOLUME 3A
1989 REPLACEMENT VOLUME
(Including Acts of the 1989 Regular Session and annotations taken from South Eastern Reporter, 2d series, through Volume 376, page 355.)
THE MICHIE COMPANY Law Publishers CHARLOTI'ESVILLE, VIRG!NIA tllffiE.A.X LAvV LIBRARY § 15.1-490 CODE OF VIRGINJA § 15.1-491
As to validity of piecemeal downzoning Applied in Pendleton Constr. Corp. v. ordinance, see Board of Supvrs. v. Snell Rockbridge County, 652 F. Supp. 312 (W.D. Constr. Corp., 214 Va. 655, 202 S.E.2d 889 Va. 1987); HMK Corp. v. Walsey, 828 F.2d (1974). 1071 (4th Cir. 1987).
§ 15.1-490. Matters t o be considered in drawing and applying zoning ordinances and districts. - Zoning ordinances and districts shall be drawn and applied with reasonable consideration for the existing use and character of property, the comprehensive plan, the suitability of property for various uses, the trends of growth or change, the current and future requirements of the community as to land for various purposes as determined by population and economic studies and other studies, the transportation requirements of the community, the requirements for airports, housing, schools, parks, playgrounds, recreation areas and other public services, the conservation of natural resources, the preservation of flood plains, the preservation of agricultural and forestal land, the conservation of properties and their values and the encouragement of the most appropriate use of land throughout the county or municipality. (Code 1950, § 15-821; Code 1950, § 15-968.4; 1962, c. 407; 1966, c.344; 1974,c.526; 1978,c. 279; 1981,c.418; 1983,c.530; 1989,cc. 447, 449.) •
The 1989 amendments by cc. 447 and 449 general boundary guidelines of a comprehen were identical and deleted "and" preceding sive plan but also location of property lines, "the requirements for airports" and "the pres physical characteristics of the land, and other ervation of flood plains"; inserted "airports"; factors affecting optimum geographical align deleted "for" preceding "the conservation of ment. Board of Supvrs. v. Snell Constr. Corp., natural resources" and "the preservation of 214 Va. 655, 202 S.E.2d 889 (1974). agricultural"; inserted "the" preceding "preser As to validity of piecemeal downzoning vation of flood plains"; and deleted "and for" ordinance, see Board of Supvrs. v. Snell preceding "the conservation of properties." Constr. Corp., 214 Va. 655, 202 S.E.2d 889 The precise location of boundaries be (1974). tween zoning districts is a function of the zoning process. Board of Supvrs. v. Snell Applied in Matthews v. Board of Zoning Constr. Corp., 214 Va. 655, 202 S.E.2d 889 Appeals, 218 Va. 270, 237 S.E.2d 128 (1977); (1974). Town of Vienna Council v. Kohler, 218 Va. Considerations in making zoning judg 966, 244 S.E.2d 542 (1978); Pendleton Constr. ment. - In making a zoning judgment the Corp. v. Rockbridge County, 652 F. Supp. 312 governing body must consider not only the (W.D. Va. 1987).
§ 15.1-491. Permitted provisions in ordinances; amendments. - A zoning ordinance may include, among other things, reasonable regulations and provisions as to any or all of the following matters: (a) For variances as defined in § 15.1-430 (p) or special exceptions as defined in § 15.1-430 (i) to the general regulations in any district in cases of unusual situations or to ease the transition from one district to another, or for buildings, structures or uses having special requirements, and for conditional zoning as defined in§ 15.1-430 (q) and for the adoption, in counties, or towns, therein which have planning commissions, wherein the urban county executive form of government is in effect, or in a city completely surrounded by such a county, or in a county contiguous to any such county, or in a city completely surrounded by such a contiguous county, or in any town within such contiguous county, and in the counties east of the Chesapeake Bay as a part of an amendment to the zoning map of reasonable conditions, in addition to the regulations provided for the zoning district by the ordinance, when such conditions shall have been proffered in writing, in advance of the public hearing before the governing body required by§ 15.1-493 by the owner of the property which is the subject of the proposed zoning map amendment. Once proffered and accepted as part of an amendment to the zoning ordinance, such
276 ' 15.1-491 § 15.1-491 COUNTIES, CITIES AND TOWNS § 15.1-491
r. Corp. v. conditions shall continue in full force and effect until a subsequent amend . 312 (W.D. ment changes the zoning on the property covered by such conditions; provided, y, 828 F.2d however, that such conditions shall continue if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning ordinance. ig zoning (b) For the temporary application of the ordinance to any property coming be drawn into the territorial jurisdiction of the governing body by annexation or character otherwise, subsequent to the adoption of the zoning ordinance, and pending )r various the orderly amendment of the ordinance. ·ements of (c) For the granting of special exceptions under suitable regulations and Jopulation safeguards; and notwithstanding any other provisions of this article, the ·ements of governing body of any city, county or town may reserve unto itself the right to ls, parks, issue such special exceptions. ·rvation of (d) For the administration and enforcement of the ordinance including the cvation of appointment or designation of a zoning administrator who may also hold Leir values another office in the county or municipality. The zoning administrator shall I tghout the have all necessary authority on behalf of the governing body to administer 4; 1962, c. and enforce the zoning ordinance, including the ordering in writing of the ); 1989, cc. remedying of any condition found in violation of the ordinance, and the I i bringing of legal action to insure compliance with the ordinance, including I I injunction, abatement, or other appropriate action or proceeding. 1 comprehen (e) For the imposition of penalties upon conviction of any violation of the ·operty lines, zoning ordinance. Any such violation shall be a misdemeanor punishable by a .1 id, and other fine of not less than $10 nor more than $1,000. I .phical align (f) For the collection of fees to cover the cost of making inspections, issuing .I :onstr. Corp., permits, advertising of notices and other expenses incident to the administra 374). tion of a zoning ordinance or to the filing or processing of any appeal or downzoning I rrs. v. Snell amendment thereto. ~ S.E.2d 889 (g) For the amendment of the regulations or district maps from time to time, or for their r epeal. Whenever the public necessity, convenience, general rd of Zoning welfare, or good zoning practice require, the governing body may by ordinance d 128 (1977); amend, supplement, or change the regulations, district boundaries, or iler , 218 Va. classifications of property. Any such amendment may be initiated (i) by Jeton Constr. resolution of the governing body, or (ii) by motion of the local commission, or F. Supp. 312 (iii) by petition of the owner, contract purchaser with the owner's written consent, or the owner's agent therefor, of the property which is the subject of the proposed zoning map amendment, addressed to the governing body or the mts. - A local commission, who shall forward such petition to the governing body; :egulations provided, that the ordinance may provide for the consideration of proposed amendments only at specified intervals of time, and may further provide that :eptions as substantially the same petition will not be reconsidered within a specific in cases of period, not exceeding one year. Any such resolution or motion by such 1ther, or for governing body or commission proposing the rezoning shall state the above conditional public purposes therefor. s, or towns, In any county having adopted such zoning ordinance all motions, resolu 1an county tions or petitions for amendment to the zoning ordinance, and/oz: map shall be surrounded acted upon and a decision made within such reasonable time as may be or in a city necessary which shall not exceed twelve months unless the applicant requests )WU within or consents to action beyond such period or unless the applicant withdraws his rn Bay as a motion, resolution or petition for amendment to the zoning ordinance or map, in addition or both. In the event of and upon such withdrawal, processing of the motion, , when such resolution or petition shall cease without further action as otherwise would be the public required by this subsection. wner of the (h) For the submission and approval of a plan of development prior to the ment. Once issuance of building permits to assure compliance with regulations contained nance, such in such zoning ordinance.
277 § 15.1-491 CODE OF VIRGINIA § 15.1-491
(i) For areas and districts designated for mixed use developments as defined in § 15.1-430 (r) and planned unit developments as defined in § 15!1-430 (s). (j) For the administration of incentive zoning as defined in § 15.1-430 (t). The ordinance may also provide that petitions brought by property owners, contract purchasers or the agents thereof, shall be sworn to under oath before a notary public or other official before whom oaths may be taken, stating whether or not any member of the local commission or governing body has any interest in such property, either individually, by ownership of stock in a corporation owning such land, or partnership, or whether a member of the immediate household of any member of the commission or governing body has any such interest. (Code 1950, § 15-968.5; 1962, c. 407; 1964, c. 564; 1966, c. 455; 1968, cc. 543, 595; 1973, c. 286; 1974, c. 547; 1975,cc. 99,575,579, 582, 641; 1976,cc. 71,409, 470,683;1977,c. 177; 1978,c.543; 1979, c. 182; 1982,c. 44; 1983,c. 392; 1984,c. 238; 1987,c. 8; 1988,cc.481,856; 1989,cc.359,384.)
The 1988 amendments. - The first 1988 tive power. Laird v. City of Danville, 225 Va. amendment substituted "any town within such 256, 302 S.E.2d 21 (1983). contiguous county" for "the Town of Leesburg" Wide discretion in enacting zoning. - in the first sentence of subdivision (a). Local governing bodies, because of their knowl The second 1988 amendment deleted "shall edge of local conditions and the needs of their be acted upon and a decision made on or before individual communities, are allowed wide dis June 30, 1976; all such motions, resolutions or cretion in the enactmen~ and amendment of petitions accepted for filing after July 1, 1975," zoning ordinances. A court should not substi from the last paragraph of subdivision (g). tute its judgment for that of the local legisla The 1989 amendments. - The 1989 tive body unless there has been a clear abuse of amendment by c. 359 added the language power. Byrum v. Board ofSupvrs., 217 Va. 37, beginning "or unless the applicant withdraws 225 S.E.2d 369 (1976). his motion" and ending "as otherwise would be No authority to require improvements to required by this subsection" at the end of the public highways. - A county did not have second paragraph of subdivision (g). the authority to require, as a prerequisite to The 1989 amendment by c. 384 added subdi approval of a subdivision plat, that the devel visions (i) and (j). oper construct improvements to existing public Law Review. - For survey of Virginia law highways that abut the subdivision. Hylton on municipal corporations for the year Enterprises, Inc. v. Board of Supvrs., 220 Va. 1975-1976, see 62 Va. L. Rev. 1455 (1976). For 435, 258 S.E.2d 577 (1979). article entitled, "Upzoning, Public Policy, and Standards for ad.ministering zoning ordi Fairness," see 17 Wm. & Mary L. Rev. 701 n ances required. - The courts, in passing on (1976). For survey of Virginia law on munici zoning ordinances, have firmly established the pal corporations for the year 1977-1978, see 64 rule that where such ordinances grant discre Va. L. Rev. 1487 (1978). For a comment on tionary power for their administration, there challenging rezoning in Virginia, see 15 U. must be provided standards for the guidance of Rich. L. Rev. 423 (1981). For article on condi the administering authority. Byrum v. Board tional zoning in Virginia, see 16 U. Rich. L. of Supvrs., 217 Va. 37, 225 S.E.2d 369 (1976). Rev. 117 (1982). No limitation on manner or method of Zoning is a legislative power. - The determining existence of violations. - rezoning of property, no less than the estab Nothing in subdivision (d) of this section and lishment of its original zoning classification, is § 15.1-499 suggests that there is any !imita wholly legislative, requiring action in the form tion on the manner or method by which the of an amendatory ordinance adopted by the one zoning administrator is to decide that viola "purely legislative body" that exists in the tions exist. Indeed, the language of subdivision locality involved. Laird v. City of Danville, 225 (d) of this section is expansive, suggesting that Va. 256, 302 S.E.2d 21 (1983). a zoning administrator may decide that a It is an overriding requirement of zoning law zoning violation exists based on information in Virginia that only the governing body of a that comes to his or her attention by any locality may zone or rezone property and then means, including from a trash-hauling permit only by ordinance. Laird v. City of Danville, application. Gwinn v. Alward, 235 Va. 616, 369 225 Va. 256, 302 S.E.2d 21 (1983). S.E.2d 410 (1988). Unlawful delegation of zoning power. - Becau se ther e must be a uniform appli Delegation by a city council to a planning cation of the regulations, so that the discre commission of the power to rezone property tion vested by the ordinance will not be constitutes an unlawful delegation of legisla- arbitrary, and so that the benefits of the
278 -·
i.1-491 § 15.1-491 COUNTIES, CITIES AND TOWNS § 15.1-491
lefined discretion will not be bestowed on some and function. - When the governing body of a l30 (s). denied to others under like circumstances. county reserves unto itself the right to issue l30 (t ). Byrum v. Board of Supvrs., 217 Va. 37, 225 special exceptions or use permits, the issuance wners, S.E.2d 369 (1976). of such permits is a legislative function. Byrum before , But stan d ards for special use permits v. Board ofSupvrs., 217 Va. 37, 225 S.E .2d 369 ;tating n ot r equired. - Zoning ordinances enacted (1976); Cole v. City Council, 218 Va. 827, 241 pursuant to this section need not include S.E.2d 765 (1978). I dy has I :kin a standards concerning issuance of special use Judicial function is not involved nor is of the permits where local governing bodies are to the presumption against retroactive legis exercise their legislative judgment or discre lation in changes to zoning ordinances. dy bas tion. It would be impractical to provide stan Chesterfield Civic Ass'n v. Board of Zoning I I 966, c. dards in ordinances that would be applicable to Appeals, 215 Va. 399, 209 S.E.2d 925 (1974). 9, 582, all situations that might arise. Bollinger v. Agency may be authorized to grant spe 982, c. Board of Supvrs., 217 Va. 185, 227 S.E.2d 682 cial exceptions and permits. - The govern l, 384.) (1976). ing body of a county, city or town has the Certain uses may be required to undergo authority to grant to an appropriate agency the 225 Va. special exception process. - The legislature power to grant special exceptions and special may require certain uses, which it considers to permits to the extent, and under the circum ling. - have a potentially greater impact upon stances, specified in the ordinance granting the rknowl- neighboring properties or the public than those power. Cole v. City Council, 218 Va. 827, 241 of their uses permitted in the district as a matter of S.E.2d 765 (1978). vide dis right, to undergo the special exception process. The agency, usually the board of zoning .ment of Each site is to be el amined by public officials, appeals, then acts under the standards t substi- guided by standards set forth in the ordinance, and guidelines set out in the ordinance, legisla for the impact the use will have if carried out and its action must be reasonable in light of abuse of on that site. Board of Supvrs. v. Southland these and all other pertinent facts. Cole v. City ' Va. 37, Corp., 224 Va. 514, 297 S.E.2d 718 (1982). Council, 218 Va. 827, 241 S.E.2d 765 (1978). Placing of certain uses in special excep City council must consider same factors 11ents to tion category is legislative act. - A fortiori, as agency. - A city council, having reserved 10t have the decision of the legislative body, when to itself the right to grant a special exception uisite to framing its zoning ordinance, to place certain or special permit, can act only after due Le devel uses in the special exception or conditional use consideration of the same factors which the tg public category, is a legislative action. It involves the administrative body would have been required Hylton sa.me balancing of the consequences of private to consider had such authority been delegated 220 Va. conduct against the interests of public welfare, to it by council. Cole v. City Council, 218 Va. health, and safety as any other legislative 827, 241 S.E.2d 765 (1978). ng ordi decision. Board of Supvrs. v. Southland Corp., This article distinguishes between vari .ssing on 224 Va. 514, 297 S.E.2d 718 (1982). ances and special exceptions. Bell v. City shed the As is the choice of a body to rule on Council, 224 Va. 490, 297 S.E.2d 810 (1982). t discre special exception s. - Whether a legislative Special exception and variance com •n, there body has reserved unto itself the power to pared. - A special exception is distinguished .dance of grant or deny special exceptions or use per from a variance in that the former is permissi v. Board mits, or has delegated the power to a board of ble under the ordinance while the latter autho 3 (1976). zoning appeals, the exercise of that power is a rizes a use which would otherwise be prohib thod of legislative, rather than an administrative act. ited by the ordinance. Board of Supvrs. v. ons. - Board of Supvrs. v. Southland Corp., 224 Va. Southland Corp., 224 Va. 514, 297 S.E.2d 718 tion and 514, 297 S.E.2d 718 (1982). (1982). ' limita The terms "special exception" and "spe A variance may be granted when the loca hich the cial use permit" are interchangeable. Both tion or shape of the property or other special at viola terms refer to the delegated power of the State circumstances would create a hardship if the idivision to set aside certain categories of uses which are zoning ordinance was strictly enforced. It al :ing that to be permitted only after being submitted to lows a property owner to do what is otherwise that a governmental scrutiny in each case, in order to not allowed under the ordinance. In contrast, a >rmation insure compliance with standards designed to special exception does not allow a landowner to by any protect neighboring properties and the public. do something in violation of the ordinance. g permit Board of Supvrs. v. Southland Corp., 224 Va. Instead, the property may be developed in a 616,369 514, 297 S.E.2d 718 (1982). way consistent with the ordinance, but only A presumption of legislative validity at with approval of the city after specified condi n appli taches to the issuance of a conditional use tions are met. Bell v. City Council, 224 Va. e discre permit. Bollinger v. Board ofSupvrs., 217 Va. 490, 297 S.E.2d 810 (1982). not be 185, 227 S.E.2d 682 (1976). Considerations in granting special ex 1 of the Issuance of such permits legislative ception. - If a special exception is to be
279 § 15.1-491 CODE OF VIRGINIA § 15.1-491 granted, and a special use of land in a certain of setback and height requirements as part of district permitted, the legislative body grant the issuance of a special exception. Bell v. City ing the use must consider its relation to the Council, 224 Va. 490, 297 S.E.2d 810 (1982). public health, safety, morals and general wel No right to require construction of turn fare and whether the granting of the exception lane and service road under subdivision will be effective to subserve the public objec (c). - A board of supervisors was not empow tives set forth in the city's zoning ordinances. ered to require the owners of a plant nursery, Cole v. City Council, 218 Va. 827, 241 S.E.2d as a condition to approval of their application 765 (1978). to expand, to dedicate land to the county and to Such exception cannot be granted if build a right-turn lane and a service road. inconsistent with good zoning practices. - Nothing in the language of subdivision (c) of While public convenience and necessity, and this section empowered the board to impose the general welfare, are important factors to be road dedication and construction requirements considered by a legislative body in the grant which it claimed it was empowered to impose. ing of a special use permit, they are not the The right to grant special exceptions "under sole considerations. The granting of a special suitable regulations and safeguards" does not exception in a zoning district is an action imply the power to require a citizen to turn which must be taken within the framework of land over to the county and build roads for the the zoning statutes and principles that apply to benefit of the public. Cupp v. Board of Supvrs., zoning. It cannot be taken if such action is 227 Va. 518, 318 S.E.2d 407 (1984). inconsistent with good zoning practices. Cole v. Amendment to zoning ordinance which City Council, 218 Va. 827, 241 S.E.2d 765 drew distinction between "plant nurser· (1978). . ies" and "garden centers" was not unconsti A special exception to a zoning ordinance tutional on its face. Nothing was inherently cannot be granted either by an administrative wrong in the county's effort to limit commer body operating under standards fixed by the cial encroachments into residential areas. No legislative body, or by the legislative body fundamental rights were affected, no suspect itself, if such action be inconsistent with good categories were impinged upon, no impermissi zoning practices. Cole v. City Council, 218 Va. ble classifications appear to have been created. 827, 241 S.E.2d 765 (1978). Nothing in the ordinance made it unreason An ordinance which reserved to the able in itself without regard to any particular Waynesboro City Council the authority to property. Nor was it unconstitutional as ap issue a special exception or use permit for the plied. Cupp v. Board of Supvrs., 227 Va. 518, construction of a building in any zoning dis 318 S.E.2d 407 (1984). trict in Waynesboro whenever, in its sole No provision for temporarily suspending discretion, such action was justified by public filing of site plans. - It is significant that necessity and convenience and the general this statute which, in subdivision (b), expressly welfare, without a consideration of good zoning permits the temporary application of a local practices or a consideration of the purposes of zoning ordinance to newly annexed lands, and the zoning ordinances of the city or the objec in subdivision (h) authorizes the requirement tives which zoning ordinances seek to accom of site plan approval, makes no provision for plish, was invalid on its face. Cole v. City temporarily suspending, under exigent circum Council, 218 Va. 827, 241 S.E.2d 765 (1978). stances, the filing of site plans. Board of Failure to apply for special exception. - Supvrs. v. Horne, 216 Va. 113, 215 S.E.2d 453 Where, when property owner filed an applica (1975). tion to rezone his property from A-2 to B-2, he Zoning board's delegated power to issue told the commission and the county board of use permits depends e.ntirely upon man supervisors that he planned to operate an date of board of supervisors and can be automobile graveyard, and the board rezoned revoked by ordinance at any time. Chesterfield his property, the board may have intended Civic Ass'n v. Board of Zoning Appeals, 215 thereby to grant him a special exception; Va. 399, 209 S.E.2d 925 (1974). however, as an automobile graveyard was not This section and § 15.1-499 give the trial then and is not now a permitted use in a B-2 court jurisdiction to grant an injunction, zone, and the owner did not apply for a special even though the zoning ordinance does not exception, the board had no power to grant an expressly provide · for its enforcement by in exception by implication, and the county gov junction. McNair v. Clatterbuck, 212 Va. 532, ernment was not bound by the zoning adminis 186 S.E.2d 45 (1972). trator's opinion to the contrary. Board of Applied in Wiley v. County of Hanover, 209 Supvrs. v. Booher, 232 Va. 478, 352 S.E.2d 319 Va. 153, 164 S.E.2d 160 (1968); Town of (1987). Vienna Council v. Kohler, 218 Va. 966, 244 Setback and height requirements. - S.E.2d 542 (1978); United States v. Board of Nothing in this article prevents the alteration Supvrs., 611 F .2d 1367 (4th Cir. 1979); Hurt v.
280 15.1-427 § 15.1-427.1 COUNTIES, CITIES AND TOWNS § 15.1-430
:ural and § 15.1-427.1. Creation oflocal planning commissjons; partjcipation in .unity be planning district commissions or joint local commissions. - The ode 1950, governing body of every county and municipality shall by resolution or I, pp. 487, ordinance create a local planning commission by J uly 1, 1976, in order to promote the orderly development of such political subdivision and its environs. In accomplishing the objectives of § 15.1-427 such planning U.S. 1166, commissions shall serve primarily in an advisory capacity to the governing ~ (1983). bodies. g statutes \The governing body of any county or municipality may participate in a een private planning district commission in accordance with Title 15.1, Chapter 34 s. Board of (§ 15.1-1400 et seq.) of the Code or a joint local commission in accordance with 4 Va. 655, § 15.1-443. (1975, c. 641.) !lities and ins it must Law Review. - For survey of Virginia law pulation in on land use planning for the year 1974-1975, existing or see 61 Va. L. Rev. 1769 (1975). , for public icient and § 15.1-428. Cooperation of planning commissions and other agencies. Board of - The planning commission of any county or municipality may cooperate l S.E.2d 33 with other planning commissions or legislative and administrative bodies and 1s reason officials of other counties and municipalities within or without such areas, so 's denial of as to coordinate the planning and development of such county or municipality ion, action with the plans of such other counties or municipalities. Such commissions :. Board of may appoint such committees and may adopt such rules as needed to effect ; S.E.2d 33 such cooperation. Such planning commissions may also cooperate with state and federal officials, departments and agencies. Planning commissions may atable. - request from such departments and agencies, and such departments and w ning re agencies of the Commonwealth shall furnish, such reasonable information . in issue, which may affect the planning and development of the county or municipality. if the land Board of (Code 1950, § 15-961.1; 1962, c. 407; 1975, c. 641.) S.E.2d 33 § 15.1-429. Existing planning commissions and boards of zoning 'e unrea appeals; validation of plans previously adopted. - Upon the effective nption of date of this chapter, planning commissions, by whatever name designated, . survives and boards of zoning appeals heretofore established shall continue to operate lative ac as though created under the terms of this chapter. All actions lawfully taken roof r ests, asonable. by such commissions and boards are hereby validated and continued in effect l. 49, 216 until amended or repealed in accordance with this chapter. The adoption of a comprehensive or master plan or any general develop Hven the ment plans under the authority of prior acts is hereby validated and shall stion , an continue in effect until amended under the provisions of this chapter. (Code ble when 1950, § 15-961.2; 1962, c. 407; 1975, c. 641.) opposing :asonable Board of § 15.1-430. Definitions. - As used in this chapter the words listed below 3.E.2d 33 shall have the meaning given: (a) "Governing body" means the board of supervisors of a county or the ng com council of a city or town. since its (b) "Historic area" means an area containing buildings or places in which nd it had historic events occurred or having special public value because of notable by either architectural or other features relating to the cultural or artistic heritage of City of the community, of such significance as to warrant conservation and preserva a. 1983), tion. Va. 91, (c) "Local planning commission" or "local commission" means a municipal planning commission or a county planning commission. · (d) "Municipality" means a city or town incorporated under the laws of Virginia.
233 § 15.1-430 CODE OF VIRGINIA § 15.1-430
(e) "Official map" means a map of legally established and proposed public streets, waterways, and public areas adopted by the governing body of a county or municipality in accordance with the provisions of Article 5 (§ 15.1-458 et seq.) hereof. (f) "Person" means individual, firm, corporation or association. (g) [Repealed.] (h) "Street" means highway, street, avenue, boulevard, road, lane, alley, or any public way. (i) "Special exception" means a special use, that is a use not permitted in a particular district except by a special use permit granted under the provisions of this chapter and any zoning ordinances adopted herewith. (j) "Planning district commission" means a regional planning agency chartered under the provisions of Title 15.1, Chapter 34 (§ 15.1-1400 et seq.). (k) "Zonin{f' or "to zone" means the process of classifying land within a governmental entity into areas and districts, such areas and districts being generally referred to as "zones," by legislative action and the prescribing and application in each area and district of regulations concerning building and structure designs, building and structure placement and uses to which land, buildings and structures within such designated areas and districts may be put. (1) "Subdivision," unless otherwise defined in a local ordinance adopted pursuant to § 15.1-465, means the division of a parcel of land into three or more lots or parcels of less than five acres each for the purpose of transfer of ownership or building development, or, if a new street is involved in such division, any division of a parcel ofland. The term includes resubdivision and, when appropriate to the context, shall relate to the process of subdividing or to the land subdivided and solely for the purpose of recordation of any single division of land into two lots or parcels, a plat of such division shall be submitted for approval in accordance with § 15.1-475. (m) "Development" means a tract of land developed or to be developed as a unit under single ownership or unified control which is to be used for any business or industrial purpose or is to contain three or more residential dwelling units. The term "development" shall not be construed to include any property which will be principally devoted to agricultural production. (n) "Plat of subdivision" means the schematic representation of land divided or to be divided. (o) "Site plan" means the proposal for a development or a subdivision including all covenants, grants or easements and other conditions relating to use, location and bulk of buildings, density of development, common open space, public facilities and such other information as required by the subdivision ordinance to which the proposed development or subdivision is subject. (p) "Variance" means, in the application of a zoning ordinance, a reason able deviation from those provisions regulating the size or area of a lot or parcel of land, or the size, area, bulk or location of a building or structure when the strict application of the ordinance would result in unnecessary or " unreasonable hardship to the pr operty owner, and such need for a variance would not be shared generally by other properties, and provided such variance is not contrary to the intended spirit and purpose of the ordinance, and would result in substantial justice being done. It shall not include a change in use which change shall be accomplished by a rezoning or by a conditional zoning. (q) "Conditional zoning" means, as part of classifying land within a governmental entity into areas and districts by legislative action, the allowing of reasonable conditions governing the use of such property, such conditions being in addition to, or modification of the regulations provided for a particular zoning district or zone by the overall zoning ordinance.
234 -· 5.1-430 § 15.1-431 COUNTIES, CITIES AND TOWNS § 15.1-431
I public (r) "Mixed use developmen t" means property under a single ownership and :ly of a legal description that incorporates two or more different uses, and may ·ticle 5 include a variety of housing types, within a single development. (s) "Planned unit development" means a form of development characterized by unified site design for a variety of housing types and densities, clustering of buildings, common open space, and a mix of building types and land uses in llley, or which project planning and density calculation are performed for the entire development rather than on an individual lot basis. ted in a (t) '1ncentive zoning" means the use of bonuses in the form of increased Jvisions project density or other benefits to a developer in return for the developer providing certain features or amenities desired by the locality within the agency development. (Code 1950, § 15-961.3; 1962, c. 407; 1964, c. 547; 1966, c. 344; et seq.). 1975,c. 641; 1976, c. 642; 1977, c. 566; 1978, c. 320; 1987,c. 8; 1989, c. 384.) vithin a t~ being Cross references. - As to application and "Virginia Subdivision Law: An Unreasonable 1mg and construction of the 1978 amendment to th.is Burden on the Unwary," see 34 Wash. & Lee L. ing and section, see the note to § 15.1-491.l. Rev. 1223 (1977). For survey of Virginia law on ch land, The 1989 amendment added subdivisions municipal corporations for the year 1977-1978, may be (r) through (t). see 64 Va. L. Rev. 1487 (1978). For article on Law Review. -For survey of Virginia law conditional zoning in Virginia, see 16 U. Rich. on land use planning for the year 1974-1975, L. Rev. 117 (1982). adopted see 61 Va. L. Rev. 1769 (1975). For note, three or msfer of § 15.1-431. Advertisement of plans, ordinances, etc.; joint public in such hearings; written notice of certain amendments. - Plans or ordinances or lion and, amendments thereof, recommended or adopted under the powers conferred by riding or this chapter need not be advertised in full, but may be advertised by iy single reference. Every such advertisement shall contain a reference to the place or shall be places within the county or municipality where copies of the proposed plans, ordinances or amendments may be examined. 1ped as a The local commission shall not recommend nor the governing body adopt . for any any plan, ordinance or amendment until notice of intention so to do has been sidential published once a week for two successive weeks in some newspaper published lude any or having general circulation in such county or municipality; provided, that ;ion. such notice for both the local commission and the governing body may be of land published concurrently. Such notice shall specify the time and place of hearing at which persons affected may appear and present their views, not .... odivision less than six days nor more than twenty-one days after the second advertise :lating to ment shall appear in such newspaper. The local commission and governing ion open body may hold a joint public hearing after public notice as set forth I by the hereinabove. If such joint hearing is held, then public notice as set forth above tvision is need be given only by the governing body. The term two successive weeks as used in this paragraph shall mean that such notice shall be published at least 3. reason twice in such newspaper with not less than six days elapsing between the first f a lot or and second publication. structure When a proposed amendment of the zoning ordinance involves a change in essary or the zoning classification of twenty-five or less parcels ofland, then, in addition variance to the advertising as above r equired, written notice shall be given by the local variance commission at least five days before the hearing to the owner or owners, their nd would agent or the occupant, of each parcel involved, and to the owner s, their agent ge in use o:r; the occupant, of all abutting property and property immediately across the 3.l zoning. street or road from the property affected. In any county or municipality where within a notice is required under the provisions of this section, notice shall also be tion, the given to the owner, their agent or the occupant, of all abutting property and !rty, such property immediately across the street from the property affected which lies Jvided for in an adjoining county or municipality of the Commonwealth. Notice sent by nee. registered or certified mail to the last known address of such owner as shown
235 1..) \-\ '~.. - \,
R~CiWEO ~ (fPA RTM~Nf OF PLANNING ANo i:ONING ocr 2 s 2orn
SPECIAL PERMIT & Alan Potter VARIANCE BRANCH 9907 Barnsbury Court Fairfax, VA 2203 1
October 20, 2010
Ms. Deborah Hedrick Fairfax County Zoning Evaluation Division Department of Planning and Zoning 12055 Government Center Parkway, Suite 801 Fairfax, VA 22035 Re: SP 2010-PR-054 for Thomas S. Cherry
Dear Ms Hedrick:
My neighbors, Thomas and Mary Cherry at 3115 Northwood Road, have informed me of their plans to convert their one car carport into a two car garage with a single 16' door.
This letter is to inform the Board that I support their request. My house is across the street kitty comer to the Cherrys, and I can easily see their house from mine.
Alan Potter
RECEIVED Department of Planning &zo nlno OCT 2 6·2010 ZoningE valuation Division 31 16 Savoy Drive RECEIVED Fairfax, VA 22031 DEPARTMENT OF PLANNING AND ZONING Ms. Deborah Hedrick Fairfax County Zoning Evaluation Division OCT 2 7 2orn Department of Planning and Zoni ng SPEClAL PERMIT & 12055 Government Center Parkway, Suite 801 VARIANCE BRANCH Fairfax, VA 22035
Re: SP 20 10-PR-054 for Thomas S. Cherry
October 27, 2010,
Dear Ms. Hedrick:
I am a neighbor of Thomas and Mary Cherry. r live behind them on the diagonal, and our properties overlap at the comers. I can see their existing carport and driveway from my property and will be able to see their proposed garage as well - especially in winter when the le.aves are off the trees. I do not object to their building the proposed garage on their property. ln fact, 1 prefer the garage, as it will allow them to conceal toys, tools. and other equipment. The garage, as proposed, will not have any negative impact on my property.
Sincerely,
Kathleen L. Goodin Mrs. Ann Kimbe-rland and Mr. Rod 'ydam 31 I 4 Savoy Drive Fairfax. VA 22031- 10 19
RECEIVED DEPARTMENT OF PLANNING October 27. 2010 AND ZONING
Ms. Deborah Hedrick OC:T 2 8 20\0 Fairfax County Zoning Evaluation Division $PEClAL PERMIT & Department of Planning and Zoning VA~lANCE BRANCH 12055 Government Center Parkway. Suite HO I Fairfax, VA 22035 Re : SP 2010-PR-054 for Thomas S. Cherry
Ms. Deborah Hedrick:
We are in full support of the garage our n eighbo r~ . the Cherrys at 3 I 1S Northwood are seeking to build on their property. Their carport and the proposed garage are visible fro m the back of our house. We believe it wi ll have a positive effect on the val ue of their home as well as the neighborhood, which will benefit us all.
Thank you for your consideration,
~------f()/:Z 7//P R Nydam Date
Ann Kimberland Date D H l~-t-lC
November 23, 2010 RECEIVED DEPARTMENT OF PLANNING AND ZONING Department of Pl anning and Zoning Special Pennit & Variance Branch NO V 2 3 2010 12055 Government Center Parkway, Suite 80 I Fairfax, Virginia 22035 SPECIAL PERMIT & VARIANCE BRANCH Re: SP 201 O-PR-054 for Thomas S. Cherry
Dear Sir/Madam:
I write regarding the Cherry Family's effort to seek a permit to allow a reduction in the setback for construction of a two car garage on their property located at 311 5 Northwood Road.
I understand the setback has been a contentious issue which may have in fact been litigated many years ago (and certainly was resisted by their neighbors at 3113 Northwood Road). I have no objection to the Cherry's proposal to permit a garage that is larger than the current footprint of the home. My understanding is that the neighbors located at 3 11 3 Northwood Road maintain that they have no objection to the proposed structure to the extent it shares the exact footprint of the existing structure and is otherwise in keeping with the neighborhood's character.
Unfortunately, I believe this position (same footprint) unnecessarily deprives the Cherry family of the full use and enjoyment of their property. In particular, I object to the suggestion that the Cherry's be denied the opportunity to more efficiently and fully utilize their property especially given that because of the design of the homes on the street, the difference between a 6 foot setback and the current setback would have virtually no impact on the use and enjoyment of the neighbor'.s property. Moreover, given the cun-ent use of the property at 3115, the addition of a garage would likely add value both to 3115, 3113 and the remainder of the neighborhood.
We recently had our home appraised and learned that the Jack of a garage (single car) lowered the value of our home by $8,000.00. Moreover, to the extent that property values are derived at least in part from the presence or lack of garages - the reality being that comparable new homes simply are OT built wi thout garages, much less single car garages, the proposed improvements would inure to the benefit of the entire neighborhood. Finally, given the relatively large lot sizes within the neighborhood, granting a special permit to the Cherry's should not otherwise compromise the integrity and aesthetics of the community that we know and love.
While these two neighbors may disagree over the relative merits, I am also mindful of the directly adjacent neighbors' desire to enjoy their own home and property as they have done for nearly 40 years. 1t would be my sincerest hope that the parties could reach some type of compromise. While I do not be\jeve that a 6 foot setback would adversely affect our neighborhood, it seems clear that such a setback will clearly affect the relationship 15 November 2010
Department of Planning and Zoning Special Permit & Variance Branch RECEIVED DEPARTMENT OF PLANNING 12055 Government Center Parkway, Suite 801 ANDZONlNG Fairfax, VA 22035 NOV 18 2010 Re: SP 2010-PR-054 for Thomas S. Cherry SPECIAL PERMIT & VAAtANCE BRANCH Dear Sir/Madam:
We are close neighbors of the Cherry Family and wish to indicate our support for their request for a special permit to allow a 50% reduction in the side setback. This would allow them to build an appropriately sized garage, which is a key element missing from this house design. ., We fully believe that the Cherry's should be able to modify their home in a manner that has little if any impact on the neighbors. This kind of expansion makes perfect sense to remedy a short coming of this house design, while still leaving a side setback that is very common elsewhere in Fairfax County. Smart growth is not just MetroWest; it's also optimizing the use of the relatively large lots on Northwood Road.
I can appreciate that the family immediately adjacent to the Cherry house might feel that this would adversely affect their property, but I respectfully disagree. Houses with garages sell better than houses with carports, so it will help current owners to show future buyers that these houses can be modified to build a full-sized garage. Just the potential to expand will improve marketability.
Another advantage is that our houses are built with one side more open than the other. Each colonial house has a two-story side with no door and few windows, which faces the carport-side of its neighbor. As such, if the carport at one house is expanded, it would only affect the two story side of the yard, which few of us use. Our house is 3111, so we are neighbors to the house (3113) that is immediately adjacent to the Cherry house (3115). I can say with confidence that if the owners of 3113 ever decided to build towards our property line to build a garage, we would have no objections whatsoever.
Thank you for your consideration.
Sincerely, _9(7~ Craig Crutchfield Carina Olsson
3111 Northwood Road Fairfax, VA 22031 (703) 319-0031 : . County of Fairfax, Virginia lll§l•iii•·*'§' Office of the County Attorney Suite 549, 12000 Government Center Parkway Fairfax, Virginia 22035-0064 Phone: (703) 324-2421; Fax: (703) 324-2665 www.fairfaxcounty.gov
DATE: September 14, 2010
TO: Virginia H. Ruffner, Planner III Application Acceptance Section Zoning Evaluation Division Department of Planning and Zoning
FROM: Bette R. Crane, Paral ega~ Office of the County Attorney
SUBJECT: BZA Affidavit
REF.: 109698
Attached is a copy of an application and an original affidavit that has been approved by the Office of the County Attorney for the following case:
Name of Applicant Affidavit Date of Oath
Thomas S. Cherry 6/10/10
Attachments
\\s l 7prolaw{) I\Doc uments\! 09698\BRC\A.ffidavits\3 10498.doc COUNTY OF FAIRFAX APPLICATION No:------Department of Planning and Zoning (Staff"'~~~ Zoning Evaluation Division Department of Planning &Zoninr 12055 Government Center Parkway, Suite 801 Fairfax, VA 22035 (703) 324-1290, TTY 711 AU G3 1 2010 \\ 'WW .fo irfa'\countv .2'ov/dozizon in g/appl ications Zoning EvaluationD ivision APPLICATION FOR A SPECIAL PERMIT (PLEASE TYPE or PRINT IN BLACK INK) NAME Thomas S. Cherry
MAILING ADDRESS 3115 Northwood Road Fairfax, VA 22031 APPLICANT PHONE HOME ( 703 ) 255-3084 WORK( )
PHONE MOBILE ( 571 ) 239-4200
PROPERTY ADDRESS 3115 Northwood Road Fairfax, VA 22031
TAX MAP NO. SIZE (ACRES/SQ FT) PROPERTY 0483 26 001 11,770 SQ FT INFORMATION ZONING DISTRICT MAGISTERIAL DISTRICT R-3 Providence PROPOSED ZONING IF CONCURRENT WITH REZONING APPLICATION: I
ZONING ORDINANCE SECTION 8-922 SPECIAL PERMIT REQUEST PROPOSED USE INFORMATION To replace existing carport and storage area with a garage and workshop.
NAME
MAILING ADDRESS AGENT/CONTACT INFORMATION PHONE HOME( ) WORK( )
PHONE MOBILE ( )
MAILING Se~d all correspondence to (check one): LJ Applicant --0r- LJ Agent/Contact The name(s) and addresses of owner(s) of record shall be provided on the affidavit form attached anp made part of this application. The undersigned has the power to authorize and does hereby author~e Fairfax County staff representatives on official business to enter the subject property as necessary tq p;: c~:: ~ec:~~~cation. ~~ //1 /J i 0 'iftr ?; ,,,, ,,...._-~~ .1 TYPE/PRINT NAME OF APPLICANT/AGENT SIGNATURE OF APPLICANT/~NT 1
DO NOT WRITE IN THIS SPACE
Date Application accepted: ______Application Fee Paid: $______9 Application No.(s): ------,-,,,,.-.- (county-assigned application number(s), to be entered by County Staff)
SP ECIAL PERMITNARI ANCE AFFIDAVIT
DATE: 6/10/20 10 (enter date affidavit is notarized)
I, _T_h_o_m_a_s_S_._C_h_e_rry ______, do hereby state that I am an (enter name of applicant or authorized agent)
(check one) [.t] applicant [ ] applicant's authorized agent listed in Par. 1( a) below and that, to the best of my knowledge and belief, the following is true: l(a). The following constitutes a listing of the names and addresses of all APPLICANTS, TITLE OWNERS, CONTRACT PURCHASERS, and LESSEES of the land described in the application,* and, if any of the foregoing is a TRUSTEE,** each BENEFICIARY of such trust, and all ATTORNEYS and REAL EST A TE BROKERS, and all AGENTS who have acted on behalf of any of the foregoing with respect to the application:
(NOTE: All relationships to the application listed above in BOLD print must be disclosed. Multiple relationships may be listed together, e.g., Attorney/Agent, Contract Purchaser/Lessee, Applicant/Title Owner , etc. For a multi parcel application, list the Tax Map Number(s) of the parcel(s) for each owner(s) in the Relationship column.)
NAME ADDRESS RELATI ONSHIP(S) (enter first name, middle initial, and (enter number, street, city, state, and zip code) (enter applicable relationships last name) listed in BOLD above) Thomas S. Cherry 31 15 Northwood Rd., Fairfax VA 22031 Applicant I Title Owner Mary C. Cherry 311 5 Northwood Rd., Fairfax VA 22031 Title Owner
(check if applicable) [ ] There are more relationships to be listed and Par. 1(a) is continued on a "Special Permit/Variance Attachment to Par. l (a)" form.
* In the case of a condominium, the title owner, contract purchaser, or lessee of 10% or more of the units in the condominium. ** List as follows: Name of trustee, Trustee for (name of trust, if applicable), for the benefit of: (state name of each beneficiary). Application o.(s): ------(county-assigned application number(s), to be entered by County Staff) Page Two SP ECIAL PERMITN ARIAN CE AFFIDAVIT
DATE: 6/10/2010 (enter date affidavit is notarized)
1(b ). The following constitutes a listing*** of the SHAREHOLDERS of all corporations disclosed in this affidavit who own 10% or more of any class of stock issued by said corporation, and where such corporation has 10 or less shareholders, a listing of all of the shareholders:
(NOTE: Include SOLE PROPRIETORSHIPS, LIMITED LIABILITY COMPANIES, and REAL ESTATE INVESTMENT TRUSTS herein .)
CORPORATION INFORMATION
NAME & ADDRESS OF CORPORATION: (enter complete name, number, street, city, state, and zip code)
DESCRIPTION OF C ORPORATION: (check one statement) [ ] There are 10 or less shareholders, and all of the shareholders are listed below. [ ] There are more than 10 shareholders, and all of the shareholders owning 10% or more of any class of stock issued by said corporation are listed below. [ ] There are more than 10 shareholders, but no shareholder owns 10% or more of any class of stock issued by said corporation, and no shareholders are listed below·
NAMES OF SHAREHOLDERS: (enter first name, middle initial, and last name)
(check if applicable) [ ] There is more corporation information and Par. 1(b) is continued on a "Special Perrnit/V ariance Attachment l (b )" form.
***All listings which include partnerships, corporations, or trusts, to include the names of beneficiaries, must be broken down successively until (a) only individual persons are listed or (b) the listing for a corporation having more than 10 shareholders has no shareholder owning I 0% or more of any class of stoCIC. In the case of an APPLICANT, TITLE OWNER, CONTRA CT PURCHASER, or LESSEE* of the land that is a partners/tip, corporation, or trust, such successive breakdown must include a listing and further breakdown ofa ll of its partners, of its sltarelto/ders as required above, and ofb eneficiaries of any trusts. Such successive breakdown must also include breakdowns of any partnership, corporation, or trust owning I 0% or more ofth e APPLICANT, TITLE OWNER, CON TRA CT PURCHASER or LESSEE* ofth e land. Limited liability companies and real estate investment trusts and their equivalents are treated as corporations, with members being deemed the equivalent ofs hareholders; managing members shall also be listed. Use footnote numbers to designate partnerships or corporations, which have further listings on an attachment page, and refe rence the same footnote numbers on the attachment page.
FORM SP/VC- 1 Updated (7/ 1/06) Application No.(s): ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ (county-assigned application number(s), to be entered by County Staff) Page Three SPECIAL PERMITNARIANCE AFFIDAVIT
DATE: 6/10/201 0 (enter date affidavit is notarized)
l(c). The following constitutes a listing*** of all of the PARTNERS, both GENERAL and LIMITED, in any partnership disclosed in this affidavit:
PARTNERSHIP INFORMATIO
PARTNERSHIP NAME & ADDRESS: (enter complete name, number, street, city, state, and zip code)
(check if applicable) [ ] The above-listed partnership has no limited partners·
NAMES AND TITLE OF THE PARTNERS (enter first name, middle initial, last name, and title, e.g. General Partner, Limited Partner, or General and Limited Partner)
(check if applicable) [ ] There is more partnership information and Par. l(c) is continued on a "Special Perm.it/Variance Attachment to Par. l(c)" form.
***All listings which include parmerships, corporations, or trusts, to include the names of beneficiaries, must be broken down successively until: (a) only individual persons are listed or (b) the listing for a corporation having more than 10 shareholders has no shareholder owning 10% or more of any class ofsTock. In the case ofa n APPLICANT, TITLE OWNER, CONTRACT PURCHASER, or LESSEE* ofth e land that is a partnership, corporation, or trust, such successive breakdown must include a listing and further breakdown ofall ofits partners, ofits shareholders as required above, and of beneficiaries of any trusts. Such successive breakdown must also include breakdowns ofany partnership, corporation, or trust ou,ning 10% or more of the A PPLICANT, TITLE OWNER, CONTRACT PURCHASER, or LESSEE* ofth e land. Limited liability companies and real estate investment trusts and their equivalents are treated as corporations, with members being deemed the equivalent ofshar eholders; managing members shall also be listed. Use footnote numbers to designate partnerships or corporations, which have further listings on an attachment page, and reference the same footnote numbers on the attachment page.
FORM SPN C-1 Updated (7/1/06) Application o.(s): ------(county-assigned application number(s), to be entered by County Staff) Page Four SPECIAL PERMITN ARIANCE AFFIDAVIT
DATE: 6/10/2010 (enter date affidavit is notarized) l(d). One of the following boxes must be checked:
[ ] In addition to the names listed in Paragraphs l(a), l(b), and l(c) above, the following is a listing of any and all other individuals who own in the aggregate (directly and as a shareholder, partner, and beneficiary of a trust) 10% or more of the APPLICANT, TITLE OWNER, CONTRACT PURCHASER, or LESSEE* of the land:
[.t] Othert than he names listed in Paragraphs I (a), l(b), and l(c) above, no individual owns in the aggregate (directly and as a shareholder, partner, and beneficiary of a trust) 10% or more of the APPLICANT, TITLE OWNER, CONTRACT PURCHASER, or LESSEE* of the land.
2. That no member of the Fairfax County Board of Zoning Appeals, Planning Commission, or any member of bis or her immediate household owns or has any fi nancial interest in the subject land either individually, by ownership of stock in a corporation owning such land, or through an interest in a partnership owning such land.
EXCEPT AS FOLLOWS: (NOTE: If answer is none, enter "NONE" on the line below.)
NONE
(check if applicable) [ ] There are more interests to be listed and Par. 2 is continued on a "Special Permit/Variance Attachment to Par. 2" form.
FORM SPNC-1 Updated (7/1/06) Application o.(s): ------(county-assigned application number(s), to be entered by County Staff) Page Five SPECIAL PERMITNARIAN CE AFFIDAVIT
DATE: 6/10/2010 (enter date affidavit is notarized)
3. That within the twelve-month period prior to the public hearing of this application, no member of the Fairfax County Board of Zoning Appeals, Planning Commission, or any member of his or her immediate household, either directly or by way of partnership in which any of them is a partner, employee, agent, or attorney, or through a partner of any of them, or through a corporation in which any of them is an officer, director, employee, agent, or attorney or holds 10%m or ore of the outstanding bonds or shares of stock of a particular class, has, or has had any business or financial relationship, other than any ordinary depositor or customer relationship with or by a retail establishment, public utility, or bank, including any gift or donation having a value of more than $100, singularly or in the aggregate, with any of those listed in Par. 1 above.
EXCEPT AS FOLLOWS: (NOTE: If answer is none, enter "NONE" on line below.)
NONE
(NOTE: Business or financial relationships of the type described in this paragraph that arise after the filing of this application and before each public hearing must be disclosed prior to the public hearings. Seeb Par. 4 elow.)
(check if applicable) [ ] There are more disclosures to be listed and Pari . 3 s continued on a "Special Permit/Variance Attachment to Par. 3" form. 4. That the information contained in this affidavit is complete, that all partnerships, corporations, and trusts owning 10% or more of the APPLICANT, TITLE OWNER, CONTRACT PUR CHASER, or LESSEE* of the land have been listed and broken down, and that prior to each and every public hearing on this matter, I will reexamine this affidavit and provide any changed or supplemental information, including business or financial relationships of the type described in Paragraph 3 above, that arise on or after the date of this application.
WITNESS the following signature:
(check one)
Thomas S. Cherry I Applicant (type or print first name, middle initial, last name, and title of signee)
Subscribed and sworn to before me this f() day of , } ( 1 n e of /J.4/!(24# , County/City of .44Clea V1
My commission expires: 1 Z / gci3 8
\ SPNC-l """'"" (7/l/06) NOTES
1. TAX MAP: •8·3-0026· I
2. ZONE: R·3
3. LOT AREA: 1.1 ,770 SQUARE F£[1'
• . R£QUIREO VAROS:
FRONT: 10 F£[1' SIDE: 12 FUT REAR: 2SfE[1'
EXISTING CARPORT AHO STORAGE S. HEICKTS: TO BE REMOVED WITH OWWJNC 18 FEET CONSTRUCTION or HEW GARAGE SCREEN ENClOSW POROf 11.HE[l' OPEN POROI 9.• FE[l' WALLS AS NOTEO FENCES AS NOTED I?' PROPOSED CARAGE 1-4 FEIT ~§ SECTION 2 6. THIS PROPERTY IS SERVED BY PUBLIC WATER ANO SEWER. r d~ 8 .. ans·oo-e 7. THERE IS NO OBSERVABLE EVIDENCE OF GRAVE SITES OR s BURIAL GROUNDS ON THIS PllOPERTY. B ~ , 8 ALL IMPROVEMENTS SHOWN OH THIS PLAT ARE EXISTINC UNLESS l N11·33••1•w 2 PLAT SHOWING THE IMPROVEMENTS ON LOT 1 SECTION 3 VILLA D'ESTE PROVIDENCE DISTRICT I FAIRFAX COUNTY, VIRGINIA SCALE: 1" • 20' JANUARY 12, 2010 CHERRY ~ t"'~ ~-: ALEXANDRIA SURVEYS INTERNATK>NA.l,. LLC 1110sount D«iS HK".HWAY ALDWC>lliA , VllC"MM 1!110 TlL NO. 70J.MO-aiU FAX NO. 70).761·71"'4 #10·0022 Thomas S. Cherry Mary Cronin Cherry 3115 Northwood Road Fairfax, VA 22031 rtECEfVEO October 15, 2010 1lepartment of Planning &Zo nir1::• Ms. Debbie Hendrick OCT 18 2010 Fairfax County Zoning Evaluation Division Department of Planning and Zoning Zoning-Evaluation Division 12055 Government Center Parkway, Suite 801 Fairfax, VA 22035 Dear Ms. Hendrick: We were asked to provide additional justification for a two-car garage due to the proposed narrow width of our original submission. The submitted plat shows a structure extending 18' from the current brick carport wall to a point 6 feet from the property line (50% of the required 12 foot setback). There was some concern that the interior width of the garage would be too narrow to accommodate two cars. The following should help clarify our plans and justify the narrow width of the two-car garage portion of the addition. 1) To maximize the interior width of the garage, we plan to remove the bricks from the current carport wall and replace them with approved drywall. This should provide an additional 5" to the interior width of the garage, bringing the total interior width from 17'7" to 18' of parking space (see attached revised tloorplan). This was our original plan, but was not indicated on the submission because we did not think it was important to the decision. It was unclear on the original submission, but should be very clear now. Another way we will maximize the interior width of the garage is by not having a roof overhang on the north wall. This is a style similar to many of the homes in our neighborhood, including our adjoining neighbors. 2) Two-car garage widths vary greatly, but 18' feet is an acceptable width. While Fairfax County does not mandate minimum interior widths for two-car garages, we were able to identify several municipalities that do. Davis, CA and Torrance, CA require at least 18' interior width; Sunnyvale, CA requires at least 17' (we were unable to fi nd any Virginia documentation defining minimum garage width). We were able to confirm that accessible parking spaces in public parking lots in Fairfax County must be at least 8'6" wide (17' for 2 spaces). (See attached references.) Our current vehicles have a total width of 12'4" (Toyota Camry (5'11" wide) and a Honda Pilot (6'5" wide)) and we intend to park both cars in the garage (particularly during inclement weather). We realize that the interior width of 18' is narrow, but it WILL accommodate our standard-sized cars via a typical 16' two-car garage door, and allow for opening doors and moving around the cars. There will be nearly 6' total remaining space (approximately 2' on each side and between cars). October 15, 2010 Page Two Many communities in the area have two-car garages that are 18' wide or even less. Attached are three floorplans from local builders with recent projects in our area: two with 18' wide garages and one with a 17'1 l" wide garage. Additionally, the Lakeport community in Reston has two-car garages that are 17'6" wide with 16' doors. Attached are two photos of garages in the Lakeport community showing two cars parked in them. Notice in the photos that the 17'6" width is further reduced by walls within the garages. We measured the garage at the widest part of the interior, not the narrowest. Despite the seemingly narrow width, residents still seem able to comfortably park two cars within them. In Photo 1, the total width of the cars is 12'2" (an Audi A4 and a Jeep Wrangler). In Photo 2, the total width of the cars is 11 '8" (a Honda Element and a Honda Accord). Our Toyota Camry and Honda Pilot are a total of 12'4" wide, and our garage will be 6" wider than these examples. Our proposed structure is clearly the least amount necessary to accommodate our purpose, and is an acceptable width for a two-car garage. Anything smaller would likely not be usable as a two-car garage for our current vehicles, thus we are requesting the full 50% reduction in the side yard setback. 3) The additional depth of the structure (which does not exceed the current depth of the carport) is requested to accommodate a small workshop. This area will be used to store tools (table saw, air compressor, etc.), tool bench, bikes, toys and lawn equipment, as well as exercise equipment. Having this workshop area will leave maximum parking space in the garage portion of the addition, minimizing our need for storing items in the garage. We also want to put a treadmill in the workshop, because our basement, where we have space for a treadmill, has a ceiling that is too low to accommodate a 6' tall person (Thomas) while jogging/running on it. The treadmill will require a significant portion of the workshop. Please also consider that our neighborhood has restrictive covenants that specify that no sheds are allowed in yards, so we really need the additional space in the workshop for storing items. There is currently a small storage shed at the end of the carport, built by the original owners of the house, that allows for some storage. This storage space will go away when we remove the current carport. The new workshop will serve this purpose. 4) To address the issue of the appearance of a 33' long wall on the north side of the property, we hope to break up the length of the wall in several ways. We have proposed a door along the wall which will break up the length of the wall. There will also be a faux gable vent at the apex of the wall to improve the appearance of the wall. Currently, we have a 6' privacy fence that will remain and sit just beyond the side garage door (approximately 2/3 back from the front of the garage). This fence will also help break up the length of the wall. We will install a gate in this fence to allow us to easily conceal our garbage containers behind it, thus removing the need for space in the garage to store them. October 15, 2010 Page Three We have also planned to landscape the area beside the addition to make it more attractive from the street line. If the Board feels we should install a side window to further assist in making the wall more aesthetically pleasing, we will do that, but we prefer not to have a window on that wall for security purposes. Please keep in mind that this is a one-story addition, and the main windows on the adjoining north lot are second story windows. The small window on the first floor of our neighbor's house is above their washer and dryer. Our proposed structure will not block any light to this window or any other window on their house since it is a lower elevation and only one story (see Figure 12 in the original submission package for a clear picture of these windows). We appreciate your further consideration of our request. Sincerely, Thomas S. Cherry Mary Cronin Cherry 3115 Northwood Road Revised Addition Floorplan 15/10 Fairfax, VA 22031 Shows additional interior width and existing vehicles drawn to scale 6' Setback / 12' Setback ,J------1----1 s'-O"'----======i-J / Current Roofline 12'-0' 1 Please note that the exterior wall location has not changed. The additional 5" interior width will be obtained PD Garage ricks by removing b Addition from current carport Lill wall and replacing Existing with approved drywall. Carport Bricks to be removed Scale %" = 1' ...... 9 ~ ~ II "'" ~ .s ~ co ..; Q) Garage Sq. Ft. = 111:11 ~ ~ N 387 (interior) (/) Workshop Sq. Ft= ~ 180 (interior) : 0 ...... Open Porch \ Current Roofline .l'------!...--- --19'-4' ______J- Accessible Parking - Fairfax County, Virginia http://www.ta1rtaxcounry.gov1uso1mmu1µi:111u1uu Home Living Here Doing Business Visiting Departments & Agencies Search Site: Index ~ > hutth and tynen sorviccs > tvnan 1e0r1co1 > fajrtax ar11 djsabji tv aerAces bo1rd: Conlac:IS/Oireetions Accessible Parking Oisabifity SeNces Board Home Page Si18 Accessibilty AboutUS To request a searchable Adobe PDF version of the infoonatJOn below, or altemative formats such as large prin~ please send a message that includes your mailing address and/or e-mail. Frequenlly Caled ~ Legal Resources Ub News and Events The Americans wrth Disabilities Act (ADA) is a federal law that gives people with disabilities the right to access public programs and public accomnodatoons. Having accessible parking spaces, and the ability to reserve those spaces for people with disabilities, Is vital for access. State Maps, Facts & Stats and local laws, regulations, and codes-such as the Virginia UnWorm Statewide Building Code and the Fairfax County Pubhc Facilrties Manual, and the Virginia Department of Motor Vehicle regulations determining who can park in accessible spaces-brings the M:JA to l~e . State & Federal Accessible Parking Spaces The ADA Standards for Accessible Design (ADAAG) sets standards for accessible parking which are in tum incorporated into state and local building codes. Accessible parking spaces must be provided in all parking areas open to the public and located on the sho Signs Accessible parking spaces are to be identified by an above-grade sign displaying the n temational Symbol Of Access and the words "OMV PERMrr REQUIRED, PENALTY $100 • $500 FINE, TOW-AWAY ZONE". The signs shall be 12" wide and 24" high and shall be mot..r1ted on a wall or post so that the low« edge of the sign is not less than 4' nor more than 7' above grade. A van accessible space shall have an addrtional sign 12" wide and 7" high and shaU display the words 'VAN ACCESSIBLE". Note that an accessibdrty symbol painted on the parking facility floor camot be the only way an accessible space is marked. I is the property owrier/manage~s responsibihty to post accessible parkng signs that conform to current regulations. The signs shall consist of wM e lettenng on a blue background. A plate with the standards for Fairfax County is available online in the forms section of the Fairfax County Public Facilrties Manual, numbers 32.A-7 and 32B-7. 11 addition, the requirements for posting slgnage for accessible parking are also in plates 32C-7 and 32CM-7 of the Fairfax County Public Facilities Manual. (Please note: You must install a free plug~n on you computer to view the plates. The hnk to the plug~n are at the top Of the page of the Facilities Manual.) Disability parking signs can be obtained from commercial sign shops. Most sign shops also install the signs. Sign shops can be located in the Yellow Pages and the ntemet. Many indicate in their advertisements that they are in compliance with the ADA, but prices vary considerably and getting several quotes may assure the best price. ConsLm11rs are advised against using sign shops that are not aware of end do not have the current neqwemen1s for signs for the junsdictlOn in which the signs will be placed. Back to Top Location, Number, and Size of Accessible Parking Accessible parking spaces must be located on the shertest accessible route Of travel to an accessible entrance. 'Mlere buildings have multiple accessible entrances with adjacent parking, the accessible parking spaces must be dispersed and located closest to the accessible entrances. The law sets out the minimum number Of accessible parking spaces, based on the size Of the parking facility. Appendix 1 lists the minimum number Of accessible van and car spaces required but check wrth locaJ building codes should they be more stringent. Also note that for places having multiple parking facilrties (such as malls) the numbers of total parking spaces are not combined to determine the number of accessible spaces. Instead, each parking facility Is counted separately. In addrtlon, at least one of eight parking spaces must be van accessible, and in facilities with fewer than eight accessible parking spaces, at least one must be van accessib Access aisle dimensions, s ign specifications and accessibihty routes (including appropriate curt> ramps) are all specified by law. All parking spaces shall be delineated on both sides w ith a single line (stripe), with a minimum w idth Of 4 inches. The width for a universal parking space is a minimum Of 8 % fee~ measured from the centerline of one stripe to the centerline Of the adjacent stripe. I of5 10/18/2010 11:41 AM City of Torrance - Single Family Residences http://www.torranceca.gov/l 724.htm LOT COVERAGE (Section 91.4.9 of the TMC): Lot coverage refers to total land area covered by structures or the building footprint excluding covered patios open on 2 sides or more. • One-story: 50 percent of lot area • Two-story: 40 percent of lot area USABLE OPEN SPACE (Section 91 .4.10 ofTMC): • One-third (1/3) of total lot area is to be provided as open space in one or more areas having minimum dimensions of 10 feet by 15 feet Open space is defined as yards unobstructed from ground to sky, excepting covered patios not enclosed on more than 2 sides. ACCESSORY STRUCTURES (Section 91 .4.8 ofTMC): • Height Limited to one-story and 14 feet in height • Living quarters prohibited. • Setbacks: If located in rear Y. of lot may be setback 1 foot from rear property line and 1 foot from one interior side property line, provided setback to other interior side property line is no less than 10 percent of the lot width and no less than 3 feet If not in rear Y. of lot, building must comply with setbacks required for residence. Accessory structure mist be setback a minimum of 6 feet from residence. • Maximum Area: Provided all setbacks are met, an accessory building of 400 square feet may be built on any lot The building may also contain additional area equal to 25% of the required rear yard area. However, no accessory structure shall exceed 700 square feet in area. PARKING (Sections 93.1.3 & 93.2.1 ofTMC): An enclosed two-car private garage is required for each single-family residence. Existing residences with a one-car garage will be required to provide a two-car garage at such time the aggregate value of the cumulative structural additions/alterations made reaches fifty (50) percent or more of the replacement value of such building or structure, plus one-third (1 /3) of the garage, based on Table 3-A of Section 303 of the City Building Code. Minimum Interior Garage Dimensions (measured as clear areas inside garage): • - ar Garage: 10 feet wide by 20 feet deep • Two-Car Garage: 18 feet wide by 20 feet deep e-Car Garage: GENERAL INFORMATION: • This handout is only a summary of the R-1 Development Standards. See Chapter 1, Article 4 of Division 9 of the Torrance Municipal Code for the complete standards. Additional Community Development Department handouts are available at the Community Development Department on how to calculate: FAR, building height and, a\erage setbacks. Prepared by Torrance Community Development Department June 2002 Back to Top ... 2 of2 10/18/2010 11:44 AM Chapter 40.25.25 Parking space size and access -Davis Municipal ... http://cityofdavis.org/cmo/citycode/detai l .cfin? p=40&q= l 890&s=gar... CITY OF DAVIS, CA. RESIDENTS VISITORS BUSIN ESSES CITY SERVICES SITE MAP . ADA NOTICE : SEARCH: r-----, Municipal Code Davis Maps Job Opportunities City Council & Comm issions Departments Contact Us Municipal Code Municipal Cod e M ain Index {.!) Search Municipal Code (search.cfml PDF This Article IPOrJ (printartk le. cfm ?chapter=401ia rtic le= 1890) CH APTER 4 0 Z 0 NIN G * (CHAPTER.CFM ?CHAPTER=40) 40.25.070 Parking space size and access. (a)Off-street parking space and manewering shall meet the requirements as established by the planning commission. In the case of two·way traffic, the following minimum widths shall apply for privat e driveways: (1 )Serving one space, ten feet; (2)Serving two to six spaces, twelve feet; (3)Serving seven to twenty spaces, sixteen feet, except for high-turnover uses (less than one hour), where twenty f eet is required; (4)Serving twenty-one or more cars, twenty feet. (b)ln the case of one-way traffic, the minimum private driveway width shall be ten feet. (c)Back-out parking is prohibited, except for single and two-family dwellings and parking areas with three or less spaces. (d)Minimum parking space dimensions are: (1 )Standard space, nine feet by eighteen feet; (2)Compact space, eight feet by sixteen feet.• •compact spaces shall not be permitted in single-family residential zones. Angled and parallel spaces shall be designed pursuant to the above dimensional requirements in conjunction with the "standard automobile parking dimension requirements" for said dimensions contained in the city's parking standards resolution. (e)Minimum driveway widths and garage dimensions for single-family and duplex dwellings shall be: One CarTwo Cars Driveway Width9 ft. 18 ft. garage Dimensions10 feet x 20 feet x 20 feet•20 feet" •At a minimum, unobst ructed space (i.e., not occupied by permanent fixtures, cabinets, water heaters, etc.) within th e must meet minimum parkin space dimensional requirements (nine feet by eighteen feet for one space, eighteen feet by eig teen feet for two spaces . In the case of an existing house and driveway (building permits issued prior to May 23 , 1998), the total width of a driveway for two side by side spaces shall be sixteen feet. (f)Required uncovered parking spaces for single family and duplex dwellings located in the front yard shall not be used for, or obstructed by, storage of material, equipment or inoperable vehicles. (Ord. No. 296, § 23.5A; Ord. No. 377; Ord. 945, § 1, 2; Ord. No. 1040, § 1; Ord. No. 1940, §§ 2, 3.) I of2 10/ 18/2010 11:47 AM THINGS t1 KNOW FOR ADDl1.-0NS OR NEW CONSTRUCTION OF SINGLE FAMILY HOMES DESIGN REVIEW CORNER LOTS The following projects require approval of a Design Review with the Planning Corner lots must Division: maintain a 40 ft. vision • Projects resulting in a significant change in the appearance of the triangle clear of any exterior, objects greater than 3 • One-story residential project that adds 20% or more square footage to ft. in height. the existing floor area (including the garage), and • Second story additions, regardless of size. MINIMUM 2-CAR The design is reviewed for compliance wi th development standards and the GARAGE DIMENSIONS design policies described in the Single Family Home Design Techniques or A two·car garage must Eichler Design Guidelines as applicable. This document is available online at be 400 sq.J.f...:.:t·'-----'"'I the website listed below. Please see the Design Review handout for complete minimum. The interior information. 1 ens1on of the PARKING REQUIREMENTS garage cannot be reduced to less than 17' Homes with Less Than Two Covered Spaces and Two Uncovered Spaces (w) x 18' (d). If the home has an existing one-car garage or carport, additional parking may be required. If the addition results in 4 or more bedrooms (dens or studies count as bedrooms) or 1,800 square feet or more of floor area (including the MINIMUM 1-CAR garage), two covered spaces must be provided on the property. This parking GARAGE DIMENSIONS must meet setback requirements and minimum dimensions. See sidebar for A one·car garage must more information. be 200 sq. ft. minimum. The interior Garage Conversions or Reductions in Garage Size dimension of the If you would like to convert an existing garage/carport into living area, you garage cannot be will be required to provide an equivalent number of covered parking spaces on reduced to less than your property. Existing garages/carports which do not meet the minimum 8.5' (w) x 18' (d). dimensions (see sidebar) may not be reduced further in size. SOLAR STUDIES ROOF MATERIALS The purpose of a solar study is to ensure that new structures do not shade ALI roof materials must more than 10% of the area of an adjacent building's roof, protecting the equal or improve the property owners' ability to install solar panels. Solar studies demonstrating quality of the existing compliance with this requirement may be required for any second story material on the house. addition or new two-story home. Refer to the Solar Study handout and contact For example, 30-year composition shingles the on-duty planner for more information. must be replaced with VISION TRIANGLES 30-year or better. Vision triangles are areas which must be kept clear of all objects except for Please see the Re fences, hedges, shrubs or other natural objects of 3 feet or less in height. All Roofing handout for further information. lot s must maintain 10-foot driveway vision triangles. Corner lots must maintain a corner vision triangle of 40 feet. See the Vision Triangle brochure for further information. FIRE SPRINKLERS If you are building a new house or an addition greater than 50% of the existing living area (not including the garage), you are required to install fire sprinklers through the entire house. A Fire Protection Engineer can answer any questions you have about this requirement. One-Stop Permit Center - City Hall - 456 W. Olive Avenue - (408) 730-7444 Planners and Building Division staff are available 8:00 a.m. to 5:00 p.m. www.SunnvvalePlanning.com I www.SunnvvaleBuilding.com Rev. 12109 (yellow) Pase 2 of 2 e Saddle Ridge "Austin" Located at Intersection of Spriggs Roa~ and Riverside Dr in Dale City, Va Starting at $324,900 Off-Site Sales Center Location 13601 Hidden Creek Rd Manassas, Va 20112 (at intersection of Token Valley Rd and Hidden Creek Rd.) • 3-4 Bedrooms with 2 lh-3 1h Baths • Oversized Windows and Trim • 8 and 9 Foot Ceilings • Insulated Tilt-In Wmdows * 2 Car Garage Se~ C{.1b.Ghed -f (oor-p \0t n • Owners Bath with Separate Shower & • Handset Ceramic Tile in Bathrooms (\gt 'f. lD') Soaking Tub • 65 Gallon Hot Water Heater • Hardwood Foyer Entrance • Advanced Wiring System for TV & • Designer Two Tone Paint Phone • Cultured Marble Tops on all Vanities • Timeless Traditional Colonial • Decorative Light Fixtures Architecture • Plus Much More!!! 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Your Way.™ customization program • Celebrating 30 years of industry experience • Awards of excellence received from Maryland National Capital Building Industry Association, National Association of Home Builders, and Northern Virginia Building Industry Association POPLAR RUN LOWER LEVEL REC ROOM 22'-4" x 15'-3" GARAGE 17'-11" x 18'-10" \ ~ I . ' I J D <: FINISHED BASEMENT PLAN V\J Inc}\ e:rt-ef" '\\OM~ THE PEMBERTON A - LOWER LEVEL REC ROOM 23'-0" x 10'-3" GARAGE 18'-0'' x 1.8'-l O" FINISH.ED BASEMENT PLAN Garages in Lakeport community in Reston Photo 1 - Garage 17'6" wide with 16' door, width of cars 12'2" Photo 2 - Garage 17'6" wide with 16' door, width of cars 11'8" Thomas ;::,. Cherry Mary Cronin Cherry 3 1 15 Northwood Road Fairfax, VA 22031 August 27, 2010 RECEIJED of ing &Zoninr Fairfax County ~epartment Piaf Zoning Evaluation Division AUG 31 2010 Department of Planning and Zoning 1 12055 Government Center Parkway, Suite 801 Zoning Evaluati nDivision Fairfax, VA 22035 Dear Sir or Madam: This is a statement of justification for a Special Permit for the Reduction of Certain Yard Requirements located at 3 115 Northwood Road (Tax map #: 0483-26-0001 ) in the Providence district. The subject property was purchased on August 5, 1993 as the primary residence of Thomas S. Cherry and Mary C. Cherry. Our intent is to replace an existing attached 12-foot wide, one-car carport with an attached 18- pot wide, two-car garage. This wi ll add 6 feet to the width of the house, putting the house 6 feet fr©m the property line. This request is for a 50% reduction of the 12 foot setback for side yards requ red for the R-3 zoning district in which our property is located. A width of 18 feet is the minimum width for a two-car garage. Most two-car garages are 20-24 feet wide. By right, we can build r17- foot wide carport, so the additional 1 foot requested for the garage is minima l. We have designed a garage that is the depth of the house to accommodate a small workshop fo projects and repairs. The current carport is already the depth of the house, so this is not a chan e. The existing dwelling is approximately 2,500 square feet, the proposed garage will be approxi ately 590 square feet (24% of the existing floor area) and is clearly subordinate in purpose, scale, us and intent to the principle structure on the site. The property has extreme elevation (a steep hill) that prevents the addition of a detached garag elsewhere on the property. In addition to the hill, the narrowness of the property (82.5 feet at t e street), and the location of the house on the property create a situation where there is no other feasible place to construct a garage. This request is being made for both safety/security and aesthetic reasons: Safety/Security -- Over the years, several homes and automobiles in our neighborhood ave been broken into including our fam ily vehicles while parked in the carport and drivewa on three separate occasions (2/1211999, 9/ 19/2006 and 11 /8/09 Fairfax County Police case # 99043001809, case# 06262002989, and case# 200931 20107). We would like the secu ity of locking up our cars and concealing them from view so that it is not so obvious when e are not home. Aesthetic - Over the years, many of our neighbors have converted their carports to gar es. In the past year alone, the adjacent neighbors to the south and southwest of our property have converted their carports to garages. This request is in harmony with the character of the neighborhood and would improve the appearance of our home by allowing us to concea all our bikes, bal ls, toys and storage bins that are visible from the street. August 2 7, 2010 Page2 We intend to completely remove the existing carport and construct a garage that continues the existing roofline of the main house. We will use the same siding and roofing as the existing house so that it wi II not be out of character with the neighborhood, nor stand out as an obvious additidn. There are no existing trees or shrubs in the area where the garage addition will be constructed. he area next to the current carport where the garage wi ll be constructed is currently a gravel parkii pad and storage area for our trash cans. The existing driveway is already about a foot wider th the width of the proposed garage. The adjoining property to the north (the side of the proposed garage) is a two story house and r proposed garage addition will be only one story, so the addition will not block the views from ~e ir side bedroom windows on the upper level. These side bedroom windows are minor windows ~tr the bedrooms. The main (large) windows for these two bedrooms are on the front and rear of the House. There is also one very small first story window that may be affected, but the location of this wihdow is in the laundry room, above the washing machine, and cannot be easily used. I Due to the elevation and landscaping/vegetation of the rear property, the proposed garage is out of view of the adjoining properties to the rear. o hazardous or toxic substances or storage tanks are in existence and are not proposed by this permit application. The following special permit justification questions do not apply to this request since this a sin le family home, and there is no change in the current use of the area: • Types of operation(s), • Hours of operation, • Estimated number of patrons, • Proposed number of employees, • Estimated traffic impact, vicinity or general area to be served by the use. We thank you for your consideration of our request. Sincerely, ~c&oMary Cronin Cherry Applicant: moMAS S. CHERRY Special Permit Accepted: 09/1312010 SP 2010-PR-054 Proposed: RIDOCIDN CF CERil\INY.ARD REQUIRE~NTS IDPER..~ADIITICN 6.0 FEET HlOYSIDE LOfUNE Area: 11,770 SF OF LAND; DISlRICT - PROVIDENCE Zoning Di st Sect: 08-922 Art 8 Group and Use: 9-21 L-0eated: 3115 NORTHWOOD ROAD Zoning: R- 3 Overlay Dist: Map Ref Nun: 048-3- /'26/ /0001 - ,-> - .J ~ .tr e: '"j ,.. ' ~. ;:r ~ .- ~ la-4 _,,__ S:l-l 7- -!~J tr <<~ ~ TONt::EUF VIENNA I ' .....,_~ ~ lc~x~~ I ~ --· / "'~ l '> .i ~•• J \ \ ~ ... \\ . / I l '- •7-2 ... Figures - 3115 Northwood Road -Viewed from southeast I Figure 6 - Picture index, number represents angle of picture for above figures Depa RECEIVED rtmenr nf "tannin 9 z . ~ c: onmg JL:_ J 9 ltl[J -onmg" . EvafuEtion Division Figure 1 - 3115 Northwood Road - Front yard viewed from northwest Figure 2 - 3115 Northwood Road - Front yard viewed from west 5£ ;t610 - D 13$ Figure 3 - 3115 Northwood Road - Front yard viewed from southwest Figure 4 - 3115 Northwood Roa d - North side yard close-up viewed from west (proposed garage will slightly narrower than the current asphalt driveway pad) Figure 5 - 3115 Northwood Road - Yea r yard viewed from northeast Figure 6 - 3115 Northwood Road - Year yard viewed from east Figure 7 - 3115 Northwood Roa d - Year yard viewed from southeast Figure 8 - 3115 Northwood Road - So uth side yard viewed from southeast Figure 9 - 3115 Northwood Road - Panorama of year yard from north lot line looking south Figure 10 - 3115 Northwood Road - Panorama of year yard from south lot line looking north Figure 11 - 3115 Northwood Road - Panorama of year ya rd behind current carport as viewed from northeast corner of proposed garage Figure 12 - 3115 Northwood Road - Panorama of rear yard behind current carport as viewed from screened porch door (small red and white stick just beyond the shadow marks corner of proposed garage) Figure 13 - 3115 Northwood Road - Aerial view of house from west with photo index Figure 1, View of 3115 Northwood Road from the west. Figure 2, View of 3115 Northwood Road from the northwest. Departme R_ECEtVE/J nt Jf P!annina. ·o• zonm . JUL J 9 _JfO Zoning Evatu:it· .. . - 1on D1v1s1or. Figure 3 - 3115 Northwood Road - Viewed from the east Figure 4 - 3115 Northwood Road - Viewed from the east RECEIVED 'Jepartmem r f Pl;irrni:iu & Zoninp JIJL J 9 2JW Zoning Evaluation Division 3115 Northwood Road Fairfax, VA 22031 6' Setback 12' Setback ~ ~ Screened 12'-0" Porch ~ = Existing Carport =Garage Addition 18'-0" l\H / Current Roofline 1------+-25' O"------,. Dining Room Living Room ...= -·~ Kitchen Foyer Open Porch \ Current Roofline b b 35' Setback ~ 3115 Northwood Road Fairfax, VA 22031 6' Setback 12' Setback ~ ~ Screened 12'-0" Porch ~ = Existing Carport [] = Garage Addition 18'-0" / Current Roofline 1------l-25' 0"------....1 Dining Room Living Room Kitchen Foyer Open Porch \ Current Roofline 35' Setback ~ i------ 1 _...__I-- ~------·~...... __-____ - - ---' ..,---- ...... - ! ! 1 i t-----~~ . 9 0 -=~--1 ------~~----~-·------'------'--~~~~~----- 1 r------33'-0''------.1' Addition Side Elevation view with existing house shadowed ...... T ...... o I' . o .• • o ...... 0 ...... Existing House ,,,, 1------1 ~ DDDDDD ._ t9 0 ._ 1 r-----15·.o·------,t 18'-0' 19°-4·------.r Addition Rear Elevation Addition Front Elevation Scale: 1/8" = 1'-0" 3115 Northwood Road Fairfax, VA 22031 Jlllllm9..__,.______16i ft . p 1-t \.:2 . l - 1-0 County of Fairfax , Virginia I§ Ii§ i•i If~i 1lij§ I DATE: October 13, 2010 TO: Regina Coyle, Director Zoning Evaluation Division Department of Planning and Zoning FROM: Angela Kadar Rodeheaver, Chief Site Analysis Section Department of Transportation SUBJECT: Transportation Impact REFERENCE: SP 2010-PR-054; Thomas S. Cherry Land Identification Map: 048-3 ((26)) 0001 Transmitted herewith are the comments of the Department of Transportation with respect to the referenced application. These comments are based on the informational packet made available to this department on September 28, 20 10 and plat dated January 25, 2010. The proposed application for reduction of certain yard requirements to construct an attached garage/workshop would not create any significant additional impacts on the surrounding public street system. Therefore, this department would not object to the approval of the subject application. AKR/mdd Fairfax County Department of T r ansportation 4050 Legato Road, Suite 400 Fairfax, VA 220335-2895 !,jFCDOT Phone: (703) 877-5600 TIY: 71 1 Fax: (703) 877-5723 www.fairfaxcounty.gov/fcdot Page I or I Hedrick, Debbie From: tscherry [[email protected]] Sent: Tuesday, October 19, 2010 9:21 AM To: Hedrick, Debbie Subject: Covenants and Judge's Order Attachments: Vi lla D'Este Section 3 Covenants.pdf; Weidman v. BZA & Cherry s, Law No. 191682.pdf Hi Debbie, Attached are PDF files of the covenants and the judge's final order. The judge said the Board did not have enough evidence before it to determine undue ha rdsh ip. So the decision was overturned because of that. Our attorney objected, saying that the judge's review was de novo, but we chose not to appeal for financial reasons. Luckily, hardship is not a requirement for a Special Permit. Item 1 in the covenants states t hat no building except a house and a garage may be con structed on the property. A shed is a building. While most neighbors would not file a complaint about a shed (as evidenced by the sheds you noticed in the aerial photo), we cannot take that risk with our neighbor. Thank you again for you r time. Please let me know if you have additional questions. Mary P.S. I apologize for spelling yo ur name wrong on the new letter! I just now noticed it. From: Hedrick, Debbie [mailto:[email protected]] Sent: Monday, October 18, 2010 3:48 PM To: tscherry Subject: RE: Tech Memo Hi Mrs. Cherry It was a pleasure to meet you today. If possible, can you provide me with a copy of where your covenants restrict sheds? In viewing Figure 13 there appear to be several detached sheds within your neighborhood, and if we are going to use that to support your application, I believe the documentation would be helpful for me. I have discussed the additional details with my supervisor, and I believe we can support the application given the current proposal and background, if you could provide me with the documentation I would greatly appreciate it. Also, if you have a consent decree from the courts giving the reason for reversing the BZA's decision, that would also be beneficial. Thank you Debbie 10/20/20 10 Page I ot J Hedrick, Debbie From: tscherry [[email protected]] Sent: Monday, October 18, 2010 4:03 PM To: Hedrick, Debbie Subject: RE : Tech Memo Hello again, Debbie. On the way home, I realized that I never finished pointing out the part of the justification addressing a window on the side wall. I was going to point out to you that I had indicated in t he new letter that we are willing to put a window on the wall if the Board thinks we need one, but we prefer not to have a window for security purposes. Also, I mentioned that we didn't originally mention removal of the brick wall because wanted that to be an option for us due to the additional cost of removing the wall. We actually prefer not to remove the brick wall, but if it means a better chance of approval, then so be it. If the Board would still approve the request without the additional 5" that would be great. Perhaps we can bring this up at the hearing if you think it is a possibility. Thanks again for your time today. I'll contact my neighbor, Alan Potter, across the street about submitting his support letter as soon as possible (this is a different person, but he coincidentally lives in t he same house as the neighbor who wrote a support letter for our variance years ago). We are going to ask our adjoining neighbors to the south as well, but we were waiting until closer to t he public notice. We'll try to speak to them soon since you said it is better to have the letter in the packet. I'm not sure if they will agree to do it or not. I think many neighbors prefer not to take sides against our opposing ne ighbor more than they care about whether or not we do the project. Sincerely, Mary Cherry From: Hedrick, Debbie [mailto:[email protected]] sent: Monday, October 18, 2010 12:29 PM To: tscherry Subject: RE : Tech Memo Yes I will be here at 3 we are on the 8th floor, Suite 801 , Herrity Building, 12055 Government CEnter Parkway Thank you Debbie From: tscherry [mailto:[email protected]] sent: Monday, October 18, 2010 12:26 PM To: Hedrick, Debbie Subject: RE: Tech Memo Great! I have some things I need to do right now, but I could stop by at 3:00. Will you be available? I'd like to explain what I am submitting. Also, I have not been to the zoning office since 2001. Would you please refresh my memory on where you are? I 0/20/20 10 Page 2of3 Thanks. Mary From: Hedrick, Debbie [mailto:[email protected]] Sent: Monday, October 18, 2010 11 :05 AM To: tscherry Subject: RE: Tech Memo Thank you Mrs. Cherry I am here until 4 pm today if you would like to come in to discuss Let me know Debbie From: tscherry [ma ilto: [email protected]] Sent: Monday, October 18, 2010 10: 10 AM To: Hedrick, Debbie Subject: RE : Tech Memo Apologies for sending another ema il before you replied, but I made a typo. The message below should say: The interior width of the garage is 18' not 17'7" Mary From: tscherry [mailto:[email protected]] Sent: Monday, October 18, 2010 10:08 AM To: 'Hedrick, Debbie' Subject: RE: Tech Memo Thank you for sending this information, Debbie. I reviewed t he package that we submitted and ca n see that we included the wrong architectural rendering. The side and rear elevations are correct, but the front elevation does not match the floorplan . Perhaps that is why you had concern over the width of the garage. I would like to submit the correct rendering as well as some additional justification. The interior width of the garage is 18' not 17'11". This will be very clear on the new materials. Is there a time that we ca n meet this afternoon or tomorrow morning so I can give you this additional information personally? Please let me know. Sincerely, Mary Cherry From: Hedrick, Debbie [mailto:[email protected]] Sent: Thursday, October 14, 2010 2:16 PM To: [email protected] Subject: Tech Memo 10/20/2010 llOra ). TAlt ...... 4t>JUZ0.I 2. 1.Q>le R-41· :i. WTMtk n.no-re> •• ltf.QjllltS)"IAlll)S> AICttr. 6.H~== I offatl>IC SEL.~rON 2 ~-Wt (l;C1.QSe) ~CH Oi'S+~ a ~L~ JI ff"°'5 I ~CAAla 6 Tl'GS""°"81ffllS!lt!tDIYM!lJCw..mlMO-. 7 -5 NO _Mil N!OQ!aO* 1. ~~ON'TlliS .....TA1tt~<1J '· 11Tllfl6--!C). 2 GEORGE F. T ROWBRIDGE/ J R. ATTORNEY AT LAW SUITE 202 4 084 UNIVERSITY DRIVE FAIRFAX, VIRGINIA 22030 ADMIT TEO IN 0 C ANO VIRGINIA 17031 385-8220 FAX 17031 352- 2324 November 16, 2010 Kathleen Knoth Clerk, Boad of Zoning Appeals RECEIVED DEPARTMENT OF PLANNING Of Fairfax County AND ZONING 12055 Government Center Parkway Fairfax, Virginia 22035 NOV 1 7 2010 Re: Application of Thomas S. Cherry SPECIAL PERMIT & SP-201 O-PR-054 VARIANCE BRANCH Dear Ms. Knoth: I have been retained by Stephen and Cynthia Weidman with regard to their opposition to the above referenced application to allow construction of a two car garage adjacent to their house in the Mosby Woods subdivision. This application is extremely similar to a variance application that the Cherry's filed in 2001. That application was granted by the Fairfax County BZA in 2000 but overturned by the Circuit Court of Fairfax County in May, 2001 . The Cherrys' application for a special permit in SP-201 O-PR-054 does not mention this proceeding, and I do not know how informed the County Staff was in preparing its Staff Report which I understand has been prepared and which proposes to endorse the application, but which is not available to the interested public at this time. I am submitting to you both the Circuit Court of Fairfax County's Order of May 10, 2001 and the Petitioner's Memorandum in Support of Writ of Certiorari which explains the legal and factual reasons for rejection of the variance. The Weidman's believe that this application should be rejected because the proposed garage will be a monstrous 32' long structure located within 6' of their property line and within 19' of their bedroom window. If allowed, it would be the only structure in the neighborhood that permits such an intrusion into the required setbacks. They are also upset that they did not get notified when the application was submitted and that they did not learn of this proceeding until they received the November 11 notice had been received (on November 13) and that the County Staff Report had already been written. Please put both Mr. Weidman and myself on your speaker's list in opposition to this application. GFT:lmw Enclosure Cc: Debbie Hendrick L-CLERKBZA 11162010 VI R GIN I A : IN THE CIRCUIT COURT OF FAIRFAX COUNTY STEPHEN WEIDMAN and ) CThli'fHIA WEIDMAN ) ) Petitioners ) ) At Law No. 191682 v ) ) BOARD OF ZONING APPEALS ) OF FAIRFAX COUNTY, et aL ) ) Defendants. ) ORDER TillS CAUSE came on to be heard the 10th day of May, 2001 upon Petitioner' s Petition for Writ of Certiorari, the Writ of Certiorari issued by the Circuit Court of Fairfax County, the record of the bearing before the Board of Zoning Appeals and the argument and evidence submitted by Counsel at the hearing on May I 0, 200 I ; AND IT APPEARING that the evidence before the Court does not show unnecessary hardship within the meaning of VA CODE ANN. Sec. 15 .2-2309; AND IT FURTiffiR APPEARING to the Court that the variance granted to Thomas and Mary Cherry in BZA proceeding No. VC 00-P-105 constituted a· special privilege or convenience in violation of VA CODE ANN. Sec. 15.2-2309; AND IT FURTHER APPEARING that the grant of the variance to Thomas and Mary GE~:;:: cG£.~ Cherry in BZA proceeding No. VC OO-P-105 was based upon improper principles oflaw and was plainly wrong; It is hereby ADJUDGED, ORDERED and DECREED that the decision of the Board of Zoning Appeals in BZA proceeding No. VC 00-P- l 05 be, and the same hereby is, overruled and me variance granted by the Board of Zoning Appeals in BZA proceeding No. VC OO-P-105 be, and the same hereby is declared null and void. ENTEREDTillS 25th DAY OF MAY, 200 Hon.Leslie J'f, Alden JUDGE ,~rtl>J SEEN AND EXCEPTED TO: oN Ti-tE. l11l-oui\D~ .Ai , , ; ~\l~ \.) e o G '-f Cu u N~E:L ~6t. -nrt Jl k'~-.~~ ANO fH-"t 0?1'f 1 M~ v Ot{ 11-tf- LC~ (Lr·f. vtu ur-Jct r ~ T 1Ts JZb) 1e.v..J ...>lit~ ()~ NHb ~.130~~~ ASSISTANT COUNTY ATIORNEY Fairf.d.x County Attorney's Office 12000 Government Center Parkway Suite 549 Fairfax, V trginia 2203 5 Counsd for Board of Zoning Appeals of Fairfax County WALTON & ADA!'wiS, p_c_ 6862 Elm Street Suite 400 :~-1-- RandaD T. Greehan Counsd for Thomas S. Cherry and Mary C. Cherry .-OMa OGE F · ~ E:>GC . A SU'"'t= .. __.._...,~ -...~Z2:30 I u I VI RG IN IA : rN THE CIRCUIT COURT OF FAIRFAX COUNTY STEPHEN \VEIDMAl"'I and ) C~rnilA WEIDMAN ) ) ) Petitioners, ) ) At Law No. 191682 v ) ) BOARD OF ZONING APPEALS ) OF FAIRFAX COUNTY, et aJ. ) ) ) Defendants. ) MEMORANDUM IN SUPPORT OF WRIT OF CERTIORARI Statement of Facts Petitioners Stephen and Cynthia Weidman and Defendants Thomas and Mary Cherry are neighbors residing at 3113 and 3 11 5 Northwood Road, Fairfax, Virginia. Both residences are located in the R-3 Zoning District which permits construction of detached single-family residences on lots containing a minimum of 10,500 square feet. The minimum lot width is 80 feet. (Zoning Ordinance of Fairfax County, Art. 3, Sec. 306) In addition to its minimum lot size and width requirements, the Zoning Ordinance of Fairfax County contains minimum side yard setbacks. Those requirements prohibit construction closer than 12' from the side property line in the R-3 zoning district. (Board of Zoning Appeals Record, hereinafter "Rec.", p. 3 l) Both the Cherry residence and the Weidman residence currently conform to those side yard setback requirements. C1M .N"• ~· :At•t &.&. ....a...t ''f:G,N.&. :'.:X The Cherrys' bouse is currently located 12' from the Weidman's Jot and approximately 25' from I.heir house. The real property identification map presented to the Board of Zoning Appeals with the County's Staff Report shows on its face that both the Cherrys' lot and the Weidmans' lot are esseutl.ally rectangular properties with a size and shape comparable to each other and to other lots in the swrounding Villa D'Este subdivision. (Rec.29) The Weidmans' lot contains 11 ,833 sqtW"C feel_ The Cherrys' lot contains 11 , 770 square feet. (Rec. 15, 26, 27) Most of the Villa D'E.slc subdivision consists of rectangular lots comparable sizes. Unlike the other homes in the oOgbborbood, the Cberrys' house currently contains a 32' long one-car carport which was lengtbcoed by a previous owner. (Rec. 66-67) It is considerably longer than the standard two-car garage. (Rec. 66) The house also contains a screened porch which the Cherrys added to the rear of their house aftet" they purchased it in 1993 (Rec. 51-52). The Cherrys' house and the Weidmans' houses appear from photographs submitted by the Cherrys (Rec. 73-79) to be similarly constructed and of comparable value. In July, 2000, Thomas Cherry applied to the Board of Zoning Appeals of Fairfax County for a \-ariancc from the 12' side yard set back requirements of the Fairfax County Zoning Ordinance. The requested variance would permit Thomas and Mary Cherry to expand their 32' long. ooe feet (41 from the common property line between the Cherrys' and the Weidmans' residences. (Rec. 65) The Weidman residence is 13' from the lot line (Rec. 68) and the expanded garage would be located within seventeen feet ( 17') of the master bedroom in the Weidman residence if cie.~~ ·· ~ '-4..,._, YPON.a U:3: the variance were granted. The Cherry's stated hardship is that the narrowness and topography of -:3 ~c.... : c.a.... ~ ~..::-~ · 2 their lot allow no place to build a two-car garage to provide shelter and safety to their children during indement weather unless they are allowed to encroach upon the side yard setback required by the zooing ordinance. (Rec. 65-66) They did not provide any economic information to establish whether the expanded garage would have any effect upon the value of his home. The Board of Zoning Appeals ("BZA") held a public hearing on October 10, 2000 to coosider the Cbenys' variance application. Stephen Weidman and a neighbor, Anthony Cesole, appeared at the hearing and spoke in opposition to the variance. The BZA nevertheless granted the requested variance by a 4-3 vote over the opposition of the Weidmans and Anthony Cesole . The Board of Zoning Appeals made the following findings of fact: I. The applicant is the owner of the land. 2 The applicant presented testimony before the Board indicating compliance with the prescribed criteria for the granting of a variance. 3. The lot is very narrow. 4. Due to the slope of the backyard there is no other place to put the garage. 5. The impact of the extension to have a two-car garage is not going to be that much different from where the carport is now . (Rec 63) Based upon the above findings of fact, the Board of Zoning Appeals granted the variance, finding that "a strict interpretation of the Zoning Ordinance would result in practical difficulty or unnecessary hardship that would deprive the user of all reasonable use of the land and/or buildings involved." (Rec. 64) On October 16, 2000 Stephen Weidman filed a request for reconsideration. The following day BZA also denied the Weidmans' request for reconsideration. (Rec. 61 ) Stephen and Cynthia Weidman thereupon filed their Petition for Writ of Certiorari pursuant to a:.. ...N't~-· ~ , ., .... ~ ..n=ic;;oN.& U:::C. ~ Jlt!!)...r.:;::-: t .a..1 '"":3. ,,_.: 1'!.?C 3 VA CODE MfN Sec. 15.2-2314 within 30 days from the initial Board of Zoning Appeals bearing. ARGUMENT AND AUTHORITIES Standard of Review and Principles of Law The subject action challenges the Board of Zoning Appeals' grant of a variance pursuant to the pro...tsions ofVA CODE ANN .• Sec. 15.2-2314 (formerly, VA. CODE ANN., Sec. 15 .1- 497). Tbcre is a presumption that the Board' s decision is correct. A court may not disturb the decision of the Board unless the Board has applied erroneous principles oflaw or, where the Board' s discretion is involved. unless the evidence proves to the satisfaction of the court that the decision is plainly wrong and in violation of the purpose and intent of the zoning ordinance. The burden is on the applicant to overcome this presumption. Packer v. Hornsby, 221 Va. 117, 120, U,7 S_E 2d 140 (1980). A proceeding before the trial court pursuant to VA. CODE ANN. 15.2- 2314 is not a trial de novo. However, " [i]( upon the hearing, it shall appear to the court that tesrimooy is necessary for the proper disposition of the matter, it may take evidence or appoint a ~to take evidence as it may direct ... " VA. CODE ANN. Sec. 15.2-2314. The statutory provisions authorizing the Board of Zoning Appeals to grant variances from the provisions of the zoning ordinance are found in VA. CODE ANN. Sec. 15.2-2309. Under VA. CODE SECTION 15.2-2309, the Board of Zoning Appeals may grant a variance where a landownct' shows that exceptional topographic conditions or unusual situations create a situation where the strict application of the zoning ordinance would "effectively prohibit or unreasonably restrict the utilization of the property" and the variance will "alleviate a clearly demonstrable 4 hardship approaching confiscation" as distinguished from a "special privilege or convenience sought by the applicant"' : When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property ... , the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the utilization of the property or where the board is satisfied. upon the evidence heard by it, that the granting or the "-ariance will alleviate a clearly demonstrable hardship approaching confiscation, as distUJ&ujsbed from a special privilege or convenience sought by the applicant provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance. No such variance shall be authorized by the board unless it finds : a.. That the application of the ordinance would produce undue hardship; b. That the hardship is not shared generally by other properties in the same zoning district and the same vicinity; and c _ That the authorization of the variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance. VA. CODE ANN. Sec. 15.2-2309 (2) (emphasis added) In order to meet the statutory requirements, "not only must an applicant show the existence of at lea.st ooe of several 'special conditions' which would cause compliance with a zoning ordinance to result in an 'unnecessary hardship,' but the board of zoning appeals must find that the three enumerated tests are satisfied . ·~ v. Fluvanna County Board of Zoning Appeals, 246 Va.. 502, 436 S.E. 2d 453 (1993), citing Packer v. Hornsby, 221 Va. 117, 121, 267 S.E. 2d 140, 142 (1980) and~ v. Board of Zoning Appeals, 246 Va. 48, 51-52, 431 S.E. 2d 282, 284 (1993). The Vrrginia Supreme Court has unequivocally determined that the language ofVA. CODE ANN. Sec_ 15.2 2309 (formerly 15 .1-495)1 requires the applicant to prove that specified . Title 15. l wasrecodified in 1997. Section 15.1-495 became Section 15-2-2309. No substantive changes were made to former Section 15 . l-495(b) which became . 5 II conditions present an tinnecessary hardship" before a variance can properly be granted. "Such a bard.ship occurs when ~e strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict use of the property' or create ' a clearly demonstrable hardship approaching confiS01tion, as distinguished from a special privilege or convenience sought by the applicant_' .. Paderv. Homsby,221Va. 11 7,120-121 , 267 S.E. 2d 140(1980). Underthe language adopted by the Virginia General Assembly, variances serve the limited purpose of being an ""escape batch" in situations 'vbere enforcement of the zoning ordinance as to a particular property could be unconstitutional. Gavton Triangle v. Henrico County, 216 Va. 764. 767, 222 S.E 2d 570, 573 (1976); Packerv. Hornsby. 221 Va. 117, 122, 267 S.E . 2d 140 (1980). The V crginia Supreme Court's decision in Packer v. Hornsby, 221 Va. 1 17, 267 S .E . 2d 140 ( 1980) demonstrates the limited situations in which a Board of Zoning Appeals may grant a variance in accordance with VA CODE ANN. Sec. 15.2-2309. In Packer v. Hornsby, a landowner sought a setback variance to allow an addition to his house so that the front setback ~-ou.Jd be as dose to the ocean as other residences on his block. The Board of Zoning Appeals granted the ,...-ariance. and two neighboring landowners appealed. The Virginia Supreme Court initially recognized that the appbcant must show at least one of several "special conditions" which would cause compliance with a zoning ordinance to result in an "unnecessary hardship", and that the board of zoning appeals must find that the three enumerated tests are satisfied. Packer v. Hornsbv. 221 Va. at 121 . The Virginia Supreme Court then went on to find that "the language used in Code Sec. l 5. l-495(b) to define ' unnecessary hardship' clearly indicates that the General ~ ...... ~-e :.=t ~t~ &.flllt.&..l •'li=ON~ ~ Section 15.2-2309(2). None of the language cited in Packer v. Hornsby, 221 Va. 117, 267 S.E. 2d 140 (1980) changed. Copies of both the current Section 15.2- '"':l7 ~~; ~ ~ ~..:lrJ-t 2309 and former Section 15. 1-495 are attached hereto. 6 ,.11 ..w As.sembh· intended that variances be granted only in cases where application of zoning restrictions would appear to be constitutionally impermissible." Packer v. Hornsby, 221 Ya. at 122 (emphasis added). lf the Vtrginia Supreme Court then recognized the obvious fact that the Packers already bad a dwdiing which they bad lived in for ten years and that allowing them to expand their structure in violation of the set back requirements "manifestly" would be an improper "privilege or cooveoience" and not a '""hardship approaching confiscation" meeting the statutory requirements. Manifestly, the Packers do not face a ' hardship approaching confiscation', nor bas their use of their land been effectively prohibited or unreasonably restricted. The applicants already have a dwelling, which they did not seek to expand for ten years., and they can enlarge the house without violating the setback requirement by adding to the west side of the structure. Packer v. Hornsby. 221 Va at 122. The Packer v. Hornsby decision also expressly rejected the applicant's contention that the inability to build in conformance with other development in the neighborhood justifies a variance. To the contrary, the Court hdd that such a rule would defeat the purpose of the zoning ordinance and ~-ould violate statutory provisions requiring that "all variances shall be in harmony with the intended spirit and purpose of the zoning ordinance". Allowing piece-meal variances to be granted based upon surrounding development would enable the BZA to circumvent the zoning ordinance and violate the statutory mandate that "no provision of Sec. 15. 1-495 shall be construed as granting any board the power to rezone property-" Packer v. Hornsby, 221 Ya. at 122. Packer v. Hornsbv stands as the leading light guiding the proper use of variances in Virginia It bas been cited by the Virginia Supreme Court numerous time for the proposition that &:.a _N"•• ~ ~··""!. ...._....._. irFlGN.& Z"::X a landowner must show undue hardship or hardship approaching confiscation in order to justify a 7 \-anance_ &ks v. Board ofZoning Appeals, 246 Va. 48, 431 S.E . 2d 282 (1993) (application for '-ariance to allow group home does not show unnecessary hardship which unreasonably restricts use of the property or creates dearly demonstrable hardship approaching confiscation as opposed to special privilege sought by applicant); ~ v. Fluvanna County Board of Zoning Appeals, 246 Va. 502.. 436 S_E. 2d 453 (1993) (side yard setback variance denied where house was inad\'Crt.CDlly constructed in violation of l O' side yard setback. Other than self-inflicted hardship, record does not show hardship which effectively prohibits or unreasonably restricts use of property): Board ofZonini l\pj>eals v. BQnd, 225 Va. 117, 300 S.E. 2d 781 (1983) (variance denied based upon the fact that no hardship approaching confiscation or condition which effcctivdy prohibits or unnecessarily restricts use of property exists where a landowner seeks a variance of lot size to allow construction of a residence on an intended but unrecorded lot conforming to a previous ordinance); Board of Zoning Appeals v. Nowak, 227 Va. 201, 315 S.E. 2d 221 ( 1984) (a setback variance allowing construction of a residence 17 feet from the property 6:ne instead of the required 25 feet manifestly would not be a hardship approaching confiscation or effeaivdy prohibit or unreasonably restrict use of the land. Granting of a variance under the circumstances would instead bestow an impermissible "special privilege or convenience" .IQ, 227 Va. at 205). Like Packer v. Hornsby itsel( the Supreme Court's decision in Board of Zoning AweaJs v. Nowak decision is particularly applicable to this case on its facts. Since Packer v. Hornsby was issued, the Virginia Supreme Court has twice upheld variances in situations which meet the concerns expressed in Packer v. Hornsby but do not --~ GEF~_ .A S;IT(z::l resemble the facts of this case. . Spence v. Board of Zoning Appeals, 255 Va. 116, 496 S.E. 2d 61 .._.._.._..=ii:...... _...CA!nE (1998); Board ofZoning Appeals v. Natrella, 231 Va. 451 , 345 S.E. 2d 295 (1986) The facts of 8 I t both cases may justify grant of a variance under the rule set forth in Packer v. Hornsby because the taiJure to grant a variance could in fact create constitutional questions or statutory and public policy inconsistencies. In Spence v. Board of Zoning Appeals, an undeveloped lot was configured such t1:w no building could be constructed anywhere on the lot without a variance from setback rcquiremeuts even though the proposed construction conformed to the applicable lot coverage restrictions under the zoning ordinance. The zoning ordinance effectively prohibited use of the property and presented potential confiscation issues. In B oard of Zoning Appeals v. Natrella, the O\\i>er of a building which had existed for twenty years desired to convert rental apartments to coodominiums. No alteration of structures or land use implication was involved, but the change of form of oWDCf'Ship required a variance to conform the existing building to the current zoning Ofrfiuance. It would have been necessary to remove 4 Yi floors from the building to conform to the CWTCDt zoning ordinance. Additionally, the zoning ordinance conflicted with a statutory provision found in VA. CODE ANN. 55-79.43 which provides that a condominium may not be treated differently from a physically identical project under a different form of ownership. Denial of the variance would have greatly diminished the value of the property even though that diminishmeot would not amount to a confiscation. The Supreme Court recognized that economic loss standing alone can not justify a variance, but "it is a factor or an element to be taken into consideration and should not be ignored" as a factor in finding hardship approaching confiscation or wireasooable restriction of the property. Board of Zoning Appeals v. Natrella, .fil!l2_ra, 23 1 Va. at 458. The Supreme Court upheld the variance, recognizing that the phrase "unnecessary ..-on>a' UIE F" l "'C ! CXiE JA. hardship"' in the starute is defined in the disjunctive to include both restrictions which "effectively prohibit"' and those that uunnecessarily restrict" use of property. It accepted the owners' 9 h 'i i argument that the refusal to allow conversion of the apartment project to condominiums without any land use impact combined with the statute which prohibits discrimination against coodom.inium conversions and combined with clear adverse economic impact was enough to show an Unreasonable restriction" on use of the property even though it did not amount to a confiscation_ Because of the combination of severely diminished property value and conflicts bctvo'ttll the zoning ordinance and VA. CODE ANN. Sec. 55-79.43 , the Virginia Supreme Court found that the record established facts which would unnecessarily restrict use of the property v.ithout a variance even though no unconstitutional confiscation was involved. The facts in ::"lmrila are truly unique, and neither Board of Zoning Appeals v. Natrella. __s_y_p_ra nor Spence v. Board of Zonina Apj>eals. ~ bas substantial factual resemblance to the case that is before the The Board of Zoning Appeals Applied Incorrect Principles of Law In granting the requested variance to the Cherrys in this case, Board of Zoning Appeals reached a conclusion of law that "the applicant has satisfied the Board that physical conditions as listed above exist which under a strict interpretation of the Zoning Ordinance would result in poetical diffiruhy or unnecessary hardship that would deprive the user of all reasonable use of their land and/or buildings involved.' (Rec. 64, emphasis added) The Board of Zoning Appeals' finding of"4practical difficulty or unnecessary hardship" goes well beyond the mandate of VA CODE ANN. Section 15.2-2309(2Xa) which requires a finding that "strict application of the ordinance would produce undue hardship." Indeed, the meaning of "practical difficulty" is foreign to both the statute and the multitude of Virginia Supreme Court decisions which require that 10 II I other hardship which makes application of the zoning ordinance both economically unattractive and contrary a to public policy (such as the statute involved in Natrella). Moreover, the term .. practical di:flicutty" appears capable of a much broader interpretation than the term "unnecessary hardship" as that term is defined in Packer v. Hornsby and its progeny. Based solely upon the Language used by the Board of Zoning Appeals to express its conclusions of law, the variance gramed by the Board shouJd be rejected as inconsistent with established principles of law. The Board of Zoning Appeals' Findings of Fact are not Supported by the Record ln reaching is conclusion of law the Board of Zoning Appeals made the following findings of fact: I. The applicant is the owner of the Land . 2. The applicant presented testimony before the Board indicating compliance with the prescribed criteria for the granting of a variance. 3. The lot is very narrow. 4. Due to the slope of the backyard there is no other place to put the garage. 5. The impact of the extension to have a two-car garage is not going to be that much different from where the carport is now. (Rec_63) Based upon these findings, the Board made the legal conclusion that the Cherrys suffered a hardship which justified issuance of a variance. The Board's findings of fact are apparently based upon the Cherrys' testimony that "our badcyard bas one oft.he steepest inclines in the neighborhood making the dual condition of topography and narrowness unique to our lot." (Rec. 60). The finding of fact required by VA. CODE ANN. Sec. 15.2-2309(2)(b) also requires, however, that a finding be made that "the ...... ,..q~-·:Jl'ttt1 ~·~N~ Z::-.::X- hardship is not shared generally by other properties in the same zoning district and the same ~ ~... ~ ~ ...., ~~""'~ I I I II !' ~ "icinity." The evidence before the Board does not establish that the topography and narrowness of the lot di:ffef from the conditions prevalent in the neighborhood. Even a cursory view of the tax map contained in the staff report indicates that the Cherrys' lot is similar in width to almost all of the lots in the surrounding neighborhood. (Rec. 29) The request for reconsideration submitted to the Board ofZoning Appeals establishes that the Cherrys' lot does not suffer from unusual narrowness Of' topography relative to other lots in the neighborhood. Mr. Weidman' s request for reconsidentioo confirms that the Cberrys' lot is not unusually narrow or subject to unique topography. The Cberrys' lot is approximately 85' wide. (Rec. 51) Two other homes on the same side of the street with the same model as Mr. Cherry's home are 85" and 84.5' respectively. (Rec. 51) The Weidman's lot is only 80.5' (Rec. 51) The topography is no more unique. The Chenys submitted photographs to the Board of Zoning Appeals showing their house and significanrly sloping topography. (Rec. 77 ) However, the sloping topography shown in the pictures was not located on the Cherrys' lot. It was in fact located on the adjoining lot owned by the Weidmans. (Rec. 51, 55-56) At least six of the sixteen lots on Northwood Road do not have covered parking for two vehicles. (Rec. 53) Enclosing the Cherrys' existing carport would be pcnnissil>le under the zoning ordinance and would satisfy the security and shelter needs for Mr. Cherry and his SUV or Ford Wmstar. (Rec. 54) Moreover, the evidence presented to the Board of Zoning Appeals established that the Cherrys' house had already been expanded twice, once to lengthen the carport to 32' (Rec. 66--07 ) and again to add a screened porch/sunroom to the back of the house (Rec. 51 ). While it is undeniable that the narrowness and topography of the ..... ~""( r.ll • •"Olia m.. :A 1'.1---"(llll Cberrys' lot limited the convenience of adding a third expansion to the residence, there is no ... ~""""' ...... _ ""'ii'"''""' l:l!tllt aedil>le evidence that either the Cherrys' lot was subject to hardship of constitutional 12 propon.ions due to narrowness or topography which was not shared generally by the Weidman' s lot or other properties in the same zoning district and vicinity. ln addition to the weakness of the finding that the Chenys' hardship was caused by unique oa.rrowness and topography, the record fails to support the Board's finding that the impact of the ~'0-Caf garage '""is not going to be that much different from where the carport is now." To the coottary, the evidence established that the variance would permit construction of a 32' long enclosed ~'0-Caf garage only 17' from the Weidmans' master bedroom. Stephen Weidman testified that the variance would conflict with the "pleasant uncrowded envirorunent" in the community. The garage would "severely limit our view" and would "be overwhelming for the ~involved,.. . It would "severely depreciate the value of our property''. (Rec. 67). BZA ~fernber K.elley stated that the garage was "too massive". BZA Member Hammack concurred that °"Four feel is just awfully close to the property line for garages 32 or 33 feet long." (Rec. 71) The Cbenys have Failed to Establish Legal Hardship The Vugi:nia Supreme Court recognized in Packer v. Hornsby that the General Assembly's iment in adopting the language of VA. CODE ANN. Sec. 15.2-2309 was that "variances be granted ooly in cases where application of zoning restrictions would appear to be constitutionally impcnnis:sible." Packer v. Hornsby. 221 Va at 122. The recognition of the General Assembly's imeuded purpose was expanded in Board of Zoning Appeals v. Natrella to cover situations where dcoiaJ of a variance would cause both economic difficulties and conflicts with other statutes enacted by the General Assembly. The determination of hardship in both cases is to be based primarily upon economic factors. Neither the Virginia Supreme Court nor any statutory language has eve.- suggested that a variance may properly be granted without any showing that denial of the 13 \-ariance would adverse affect the value of the property. The record before the Board of Zoning Appeals coota:ins no evidence as to the value of the Cherrys' property. Instead of presenting e-.-ldencc to economic value, the Cherrys seek to establish "unnecessary hardship" by contending tJ:m they need an enclosed two-car garage for their security and so that their children will have a place to play during inclement weather. Neither the statute nor any decision by the Virginia Supceme Court suggests that either of these factors constitute hardship within the meaning of Vrrginia Code Section 15.2-2309. In addition to failing to meet the "unnecessary hardship" criteria outlined in Packer v. Homsb,\• and its property, the Cherrys' alleged "hardship" is not so much a hardship as a ddibent.e choice to use the most easily buildable portions of their lot for other purposes. To the extent that any bard.ships exist, they are self-inflicted. The previous owner of their house had already expanded the carport once from its original size to 3 2 feet. As recognized by Board member Hammack, the 32' carport is "'far larger than a typical two car garage" . (Rec. 66) After pw chasing their lot, the Cberrys elected to use the level ground behind their house to add a sunroom rather than a garage to the house. With this construction they deprived themselves of the most convenient opportunity to expand their garage in a location which conforms to the zoning ordinance. (Rec. 51-52) Variances are not properly granted to alleviate such self-inflicted hardships. Steele v. Fluvanna County Board of Zoning Appeals, 246 Va. 502, 436 S.E. 2d 453 {1993); Allegheny Enterprises v. Board of Zoning Appeals, 21 7 Va. 64, 225 S.E. 2d 283 (1976); Board of Zoning Appeals v. Combs, 200 Va. 471 , 477-78, 106 S.E . 2d 755, 759 (246 Va. 502, 436 S.E. 2d 453 ( 1993). Qt..& .NU~-· :A'1't >olt~ vs:=¢N.a .u;JC 14 ~ r ' The Cherrys' Variance Affinnatively Violates VA CODE ANN. Sec. 15.2-3209 The problems with Board of Zoning Appeals' grant of the variance to the Cherrys in this case go far beyond the language used in its conclusions of law and the lack of economic evidence_The evidence in this case shows that the Cherrys' request affirmatively violates SWUtOf)' requirements_ VA CODE ANN_ Sec_ 15 .2-2309 provides that the Board of Zoning Appeals shall OOl grant a variance is the requested variance constitutes a "special privilege or · ~ sought by the applicant~ and that all variances "shall be in harmony with the intended spirit and pmpose oft.he ordinance"_ The variance obtained by the Cherrys in this case violates The Vugi:nia Supreme Court in Packer v. Hornsby and Board of Zoning Appeals v_ Nowak identified situations where a requested variance manifestly constituted a request for a '"special privilege or convenience" rather than alleviation of an unnecessary hardship. The primary factor in cstab6shi:ng that the applicant in. Packer sought an improper " special request or coavcnicnce" was that he already had an existing dwelling and had lived there for 10 years. It was thus imposgble to have a hardship approaching confiscation or a an unreasonable restriction upon use oft.he property. The evidence presented to the Board of Zoning Appeals in this case is legally indistinguishable from the evidence that led to the findings that the requested variances in in Packer v _Hornsby and Nowak improperly sought a "special privilege or convenience" in violation of VA CODE ANN. Sec_ 2309_ In this case, Thomas and Mary Cherry purchased their residence at 3115 Northwood Road, Fairfax, Virginia on August 5, 1993. The lot contained 11 , no square feet improved by a valuable single family residence and is similar to the other lots along Northwood Road in the Villa D'Este subdivision. The residence appears from photographs 15 Ii ;j h to be similar to the other residences in the neighborhood. The evidence presented to the Board of Zoning Appeals does not include any evidence that the value of Cherrys' property either as it currently stands would be significantly impaired if the variance were denied or that it would be signi:ficantJy increased if the variance were granted and the garage constructed. As was the sitmtion in Packer v_ Hornsby, the Cherrys have a valuable residence on their lot which they have lived in for years without any need to expand the garage. Under the language of Packer v. Hornsby. the Cberrys would "manifestly" obtain a special privilege or convenience rather than a hardship a:pproadting confiscation of their property if they are allowed to construct their 32' long garage 4• from the Weidmans' property line and 17' from their master bedroom. While the existing value of the Cherrys' residence alone is sufficient to establish that the variance sought by Tbomas and Mary Cherry constitutes a request for a special convenience rather than the "hardship approaching confiscation" mandated by VA. CODE ANN Sec. 15 .2- 2309, the Cberrys' rationale for the variance also fails to pass legal muster . The Cherrys seek to establish their "hardship" in part by arguing that their garage is not as large as those in other houses in the neighborhood. 1be Cberrys' contention here is exactly the contention that the Vrrginia Supreme Coun rejected in Packer v. Hornsby when it said" If, as the Board concluded, one owner of the property complying with a restriction should be allowed to conform his structure to neighboring structures, then every owner would ve entitled to do so. A board of zoning appeals coul~ by granting variances piecemeal, ultimately nullify a zoning restriction throughout the zoning district'' Packer v. Hornsby, 221 Va. at 122-123. · Anthony Cesole a neighbor who spoke at the Board of Zoning Appeals hearing clearly articulated the adverse 16 !l,, impact that piecemeal variances such as the one requested by the Cherrys could have on the oeigbborhood: I'm Anthony Cesole. I live at 9909 Barnaby Court, which is the street adjacent to Northwood Road_ I have lived in tlle neighborhood for 28 years one of the origimJ buyers____ While I am sympathetic to Mr. and Mrs. Cherry's desire for their garage. I oppose this because I don't see the necessity for a variance in the area. My coocem is the precedent which may cause my neighbor to do the same thing_ . I thin1c one of the attractive features of the neighborhood has been a plant sitting right next the Cherry's that I've always looked forward to seeing that plant bloom every year_ It's one of the most beautiful plants I've ever seen in my life. This garage will take that plant out and I oppose this primarily because I don't sec the oecessity_ Mr_and Mrs_Cherry were aware of what it was when they bought the house and I don't think we should approve it because of the precedent it sets and the impact if (sic) may have on me in later years. (Rec. 69) The Cberrys' house contained an overlong one-car carport when they bought it in 1993. As Board member Kelley stated at the BZA hearing "you probably could have bought a two-car garage place_" (Rec_ 70) For the reasons set forth by the Virginia Supreme Court in Packer v. Hornsby and articulated by Anthony Cesole at the Board of Zoning Appeals hearing, the variance would encourage piece-meal ernsion of the zoning ordinance and not be in harmony with the intended spirit of the zoning ordinance. The authorization or the variance would be of substantial detJ anent to adjacent property and the character of the district would be changed in violation of VA. CODE ANN. Sec_ 15.2-2309(2)( c). The argument that the Cherrys should be allowed to conform their garage to neighboring structures even though such conformance requires a variance from the setback requirements of the zoning ordinance should also be rejected here in the same way that it was rejected in Packer v. Hornsby. 17 [I CONCLUSION The variance granted by the Board of Zoning Appeals of Fairfax County to Thomas Cherry is based upon erroneous principles oflaw_ Additionally, it is not supported by the record. The Board ofZoning Appeals' decision is plainly wrong and in violation of the purpose and intent of the zoning ordinance and the grant of the variance should be overturned. STEPHEN R. WEIDMAN and CYNTHIA WEIDMAN By Counsel CERTIFICATE OF SERVICE l hereby certify that on this 10th day of May, 2001, a true copy of the foregoing ~{emorandum in Support ofWrit of Certiorari was hand delivered to: Elizabeth Teare, Assistant County Attorney Fairfax County Attorney's Office 12000 Government Center Parkway, Suite 549 Fairfax, Vrrginia 22035 Rmdall T. Greeban, Counsel for Defendants, Thomas S. Cherry and Mary C Cherry 6862 Elm Street, Suite 400 McLean, VA 22101 18 FAIRFAX DEPARTMENT OF PLANNING AND ZONING Zoning Evaluation Divisior COUNTY Special Permit and Variance Branct 12055 Government Center Parkway, Suite 80 1 Fairfax, Virginia 22035-551 C VIRGINIA (703) 324-1280 Fax (703) 324-392.! October 18, 2000 Thomas and Mary Cherry 3115 Northwood Road Fairfax, Virginia 22031 Re: Variance Application VC 00-P-105 Thomas S. Cherry Dear Mr. and Mrs. Cherry: At its October 10, 2000 meeting, the Board of Zoning Appeals took action to APPROVE the above-referenced application. The final approval date is October 18, 2000. A copy of the Resolution is attached. This action does not constitute exemption from the various requirements of this County and State. The applicant is responsible for ascertaining if permits are required and for obtaining the necessary permits such as Building Permits, Residential Use Permits and Non-Residential Use Permits . . Information concerning building permits may be obtained by calling 222-0801. Sincerely, ~ LlJ A C~0 '-_}-- Lori M. Mallam, Deputy Clerk Board of Zoning Appeals Enclosure: As Stated \ \ S350 CWO 1\ZED\ZED\ BZACLERK\RESOLUTIONS\l 0-10-00 LEITERS.DOC COUNTY OF FAIRFAX, VIR VARIANCE RESOLUTION OF THE BOARD OF ZONING APPEALS THOMAS S. CHERRY, VC OO-P-105 Appl. under Sect(s). 18-401 of the Zoning Ordinance to permit construction of addition 4.0 ft. from side lot line. Located at 3115 Northwood Rd. on approx. 11, 770 sq. ft. of land zoned R-3. Providence District. Tax Map 48-3 ((26)) 1. Mr. Hart moved that the Board of Zoning Appeals adopt the following resolution: WHEREAS, the captioned application has been properly filed in accordance with the requirements of all applicable State and County Codes and with the by-laws of the Fairfax County Board of Zoning Appeals; and WHEREAS, following proper notice to the public, a public hearing was held by the Board on October 10, 2000; and WHEREAS, the Board has made the following findings of fact: 1. The applicant is the owner of the land. 2. The applicant presented testimony before the Board indicating compliance with the prescribed criteria for the granting of a variance. 3. The lot is very narrow. 4. Due to the slope of the backyard there is no other place to put the garage. 5. The impact of the extension to have a two-car garage is not going to be that much different from where the carport is now. This application meets all of the following Required Standards for Variances in Section 18-404 of the Zoning Ordinance: 1. That the subject property was acquired in good faith. 2. That the subject property has at least one of the following characteristics: A. Exceptional narrowness at the time of the effective date of the Ordinance; B. Exceptional shallowness at the time of the effective date of the Ordinance; C. Exceptional size at the time of the effective date of the Ordinance; 0 . Exceptional shape at the time of the effective date of the Ordinance; E. Exceptional topographic conditions; F. An extraordinary situation or condition of the subject property, or G. An extraordinary situation or condition of the use or development of property immediately adjacent to the subject property. 3. That the condition or situation of the subject property or the intended use of the subject property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted by the Board of Supervisors as an amendment to the Zoning Ordinance. 4. That the strict application of this Ordinance would produce undue hardship. 5. That such undue hardship is not shared generally by other properties in the same zoning district and the same vicinity. 6. That: A. The strict application of the Zoning Ordinance would effectively prohibit or unreasonably restrict all reasonable use of the subject property, or B. The granting of a variance will alleviate a clearly demonstrable hardship approaching ~ onfiscation as distinguished from a special privilege or convenience sought by the applicant. \\SJ50CWO/IZED\ZED\BZACLERK\Resolutions\IO- IO-OO Resolutions.doc THOMAS S. CHERR . C OO-P-105 Page 2 7. That authorization of the variance will not be of substantial detriment to adjacent property. 8. That the character of the zoning district will not be changed by the granting of the variance. 9. That the variance will be in harmony with the intended spirit and purpose of this Ordinance and will not be contrary to the public interest. AND WHEREAS, the Board of Zoning Appeals has reached the following conclusions of law: THAT the applicant has satisfied the Board that physical conditions as listed above exist which under a strict interpretation of the Zoning Ordinance would result in practical difficulty or unnecessary hardship that would deprive the user of all reasonable use of the land and/or buildings involved. NOW, THEREFORE, BE IT RESOLVED that the subject application is APPROVED with the following limitations: 1. This variance is approved for the location of a garage addition shown on the plat prepared by Kenneth W. White, dated, May 12, 2000, submitted with this application and is not transferable to other land. 2. A Building Permit shall be obtained prior to any construction and approval of final inspections shall be obtained. 3. The addition shall be architecturally compatible with the existing dwelling. Pursuant to Sect. 18-407 of the Zoning Ordinance, this variance shall automatically expire, without notice, thirty (30) months after the date of approval* unless construction has commenced and has been diligently prosecuted. The Board of Zoning Appeals may grant additional time to commence construction if a written request for additional time is filed with the Zoning Administrator prior to the date of expiration of the variance. The request must specify the amount of additional time requested , the basis for the amount of time requested and an explanation of why additional time is required. Mr. Pammel seconded the motion which carried by a vote of 4-3. Chairman DiGiulian, Mr. Hammack and Mr. Kelley voted against the motion. *This decision was officially filed in the office of the Board of Zoning Appeals and became final on October 18, 2000. This date shall be deemed to be the final approval date of this variance. A Copy Teste: ~=6?ZJ I .l CI l .£Atlft1u J-. Lori M. Mallam, Deputy Clerk - ~ "'- Board of Zoning Appeals \\S350CWOl\ZED\ZED\BZACLERK\Resolutions\JO-JO-OO Resolutions.doc Page , October 10, 2000, (Tap~ 1) Scheduled case of: 9:00 A.M. THOMAS S. CHERRY, VC OO-P-105 Appl. under Sect(s). 18-401 of the Zoning Ordinance to permit construction of addition 4.0 ft. from side lot line. Located at 3115 Northwood Rd. on approx. 11 ,770 sq. ft. of land zoned R-3. Providence District. Tax Map 48-3 ((26)) 1. Chairman DiGiulian called the applicant to the pod ium and asked if the affidavit before the Board of Zoning Appeals (BZA) was complete and accurate. Tom Cherry, 3115 Northwood Road, Fairfax, Virginia, replied that it was. Susan Langdon, Chief, Special Permit and Variance Branch, made staff's presentation as contained in the staff report. The applicants requested a variance to permit the construction of a garage addition to be located 4 feet from a side lot line. The Zoning Ordinance requires a minimum side yard of 12 feet; therefore, a variance of 8 feet was requested. Mr. Cherry presented the variance request as outlined in the statement of justification. He informed the Board that the lot was exceptionally narrow and had extreme topographical conditions, which prohibited the construction of the garage anywhere other than what was requested. He stated that he had two toddlers and another child on the way and th e garage would also provide protection for them while being strapped into and taken out of their car seats. He stated that their cars had been vandalized in the recent past and the garage would provide additional security for the family. Mr. Cherry stated that several of the homes in the area had similar garages and he submitted photographs of them. Mr. Hart referred to bushes located in the applicant's side yard and asked whether they would be removed upon construction of the garage addition. Mr. Cherry replied that they would be removed. Mr. Hart asked if the applicant planned on changing the grade of the property. Mr. Cherry replied that there would not be a change in the grade and that there were no drainage problems. Mr. Hammack asked why the garage needed to be so long. Mr. Cherry replied that the concrete slab of the carport already existed and he was adding on to it. Chairman DiGiulian called for speakers. Steven Wideman, came forward to speak in opposition . He stated that he was opposed to the garage because it would severely limit the view from their home and because of this it would decrease the value of his home. He said that the crime rate had not increased in the area and the past break ins were due to unlocked cars. Mr. Hart asked if there were windows located on the side of the home facing the proposed garage and if his house was located 13 feet from the shared lot line. Mr. Wideman answered that the master bedroom windows faced the proposed garage and that his home was located 13 feet from the shared lot line. Mr. Hart asked staff if there had been any other variances granted in the neighborhood. Ms. Langdon replied that there had been a 3-foot variance granted for the construction of a greenhouse, which was located on the corner lot on the opposite corner. Mr. Hart asked what the distance was to the next home with relation to that variance. Mr. Wideman replied that there was no house located next door to that particular lot. He continued stating that the greenhouse had never been completed and it was now an eyesore. Anthony Ceco, 9909 Barnsbury Court, came forward to speak in opposition. He stated that he lived next door to the property with the unfinished greenhouse. He said that the granting of the variance would set an unwanted precedent in the neighborhood. Mr. Cherry, in his rebuttal, stated that he did not wish to cause conflict in the neighborhood, however, his proposal would not negatively affect the neighborhood in any way. He said the garage was in character with the neighborhood and the majority of the neighbors were in support of the variance. He said the garage addition would be located below the neighbor's bedroom window. He mentioned that several years ago a large tree stood where the proposed garage extension was proposed to be and no neighbors ever complained about the tree. He said that many neighbors had adequate parking for two vehicles and he was simply requesting that he have the same. 4 Mr. Kelley stated that the garage was very large and asked if the applicant had con:s1dered making it smaller. Mr. Cherry replied that his attempts to discuss different options with Mr. Wideman were not productive and that he based the size on what several other homes had. Chairman DiGiulian closed the public hearing. Mr. Hart stated that this was a very close case but stated that he was satisfied that the physical conditions of the lot were unusual enough to grant a variance. He said that this was the only place to locate a garage because of the slope of the backyard and that the lot was very narrow. He stated that the impact of the extension was not significant. Mr. Kelley stated that he would not support the variance because it was too large. He said he would support a lesser variance. Mr. Hammack stated that he agreed with Mr. Kelley and he could not support the application. Mr. Hart moved to approve VC 00-P-105 for the reasons stated in the Resolution. II COUNTY OF FAIRFAX, VIRGINIA VARIANCE RESOLUTION OF THE BOARD OF ZONING APPEALS THOMAS S. CHERRY, VC OO-P-105 Appl. under Sect(s). 18-401 of the Zoning Ordinance to permit construction of addition 4.0 ft. from side lot line. Located at 311 5 Northwood Rd. on approx. 11,770 sq. ft. of land zoned R-3. Providence District. Tax Map 48-3 ((26)) 1. Mr. Hart moved that the Board of Zoning Appeals adopt the following resolution: WHEREAS, the captioned application has been properly filed in accordance with the requirements of all applicable State and County Codes and with the by-laws of the Fairfax County Board of Zoning Appeals; and WHEREAS, following proper notice to the public, a public hearing was held by the Board on October 10, 2000; and WHEREAS, the Board has made the following findings of fact: 1. The applicant is the owner of the land. 2. The applicant presented testimony before the Board indicating compliance with the prescribed criteria for the granting of a variance. 3. The lot is very narrow. 4. Due to the slope of the backyard there is no other place to put the garage. 5. The impact of the extension to have a two-car garage is not going to be that much different from where the carport is now. This application meets all of the following Required Standards for Variances in Section 18-404 of the Zoning Ordinance: 1. That the subject property was acquired in good faith. 2. That the subject property has at least one of the following characteristics: A. Exceptional narrowness at the time of the effective date of the Ordinance; B. Exceptional shallowness at the time of the effective date of the Ordinance; C. Exceptional size at the time of the effective date of the Ordinance; D. Exceptional shape at the time of the effective date of th e Ordinance; E. Exceptional topographic conditions; F. An extraordinary situation or condition of the subject property, or G. An extraord inary situation or condition of the use or development of property immediately adjacent to the subject property. 3. That the condition or situation of the subject property or the intended use of the subject property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted by the Board of Supervisors as an amendment to the Zoning Ordinance. 4. That the strict application of this Ordinance would produce undue hardship. 5. That such undue hardship is not shared generally by other properties in the same zoning district and the same vicinity. 6. That: A. The strict application of the Zoning Ordinance would effectively prohibit or unreasonably restrict all reasonable use of the subject property, or B. The granting of a variance will alleviate a clearly demonstrable hardship approaching confiscation as distinguished from a special privilege or convenience sought by the applicant. 7. That authorization of the variance will not be of substantial detriment to adjacent property. 5 8. That the character of the zonil ·~ district will not be changed by the granting of the variance. 9. That the variance will be in harmony with the intended spirit and purpose of this Ordinance and will not be contrary to the public interest. AN D WHEREAS, the Board of Zoning Appeals has reached the following conclusions of law: THAT the applicant has satisfied the Board that physical conditions as listed above exist which under a strict interpretation of the Zoning Ordinance would result in practical difficulty or unnecessary hardship that would deprive the user of all reasonable use of the land and/or buildings involved. NOW, THEREFORE, BE IT RESOLVED that the subject application is APPROVED with the following limitations: 1. This variance is approved for the location of a garage addition shown on the. plat prepared by Kenneth W. White, dated, May 12, 2000, submitted with this application and is not transferable to other land. 2. A Building Permit shall be obtained prior to any construction and approval of final inspections shall be obtained. 3. The addition shall be architecturally compatible with the existing dwelling. Pursuant to Sect. 18-407 of the Zoning Ordinance, this variance shall automatically expire, without notice, thirty (30) months after the date of approval* unless construction has commenced and has been diligently prosecuted. The Board of Zoning Appeals may grant additional time to commence construction if a written request for additional time is filed with the Zoning Administrator prior to the date of expiration of the variance. The request must specify the amount of additional time requested, the basis for the amount of time requested and an explanation of why additional time is required. Mr. Pammel seconded the motion which carried by a vote of 4-3. Chairman DiGiulian, Mr. Hammack and Mr. Ke lley voted against the motion. *This decision was officially filed in the office of the Board of Zoning Appeals and became final on October 18, 2000. This date shall be deemed to be the final approval date of this variance. II 6 Page , October 17, 2000, (Taf-c 1) After Agenda Item: Request for Reconsideration Thomas S. Cherry VC OO-P-105 There was no motion therefore, the request was denied. II DEPARTMENT Ot ... ~ LANNING ANJD) ZONING Zoning Evaluation Division FAIRFAX Special Permit and Variance Branch 12055 Government Center Parkway, Suite 801 COUNTY Fairfax, Virginia 22035-5510 (703) 324-1 280 Fax (703) 324-3924 VIRGINIA October 20, 2000 Mr. S.R. Weidman 3113 Northwood Road Fairfax, Virginia 22031 Re: Request for Reconsideration VC 00-P-105 Thomas S. Cherry Dear Mr. Weidman: At its October 17, 2000 meeting, the Board of Zoning Appeals took action to DENY your request for reconsideration regarding the above referenced appJication. If you should have any questions please contact Juan Bernal, Staff Coordinator, at 703-324-1280. Sincerely, ~~ _ 1 LUJ .LL~A ~ l~ u,_)-, _ . .____ - 1 Lori M. Mallam, Deputy Clerk Board of Zoning Appeals \\S350CW01\ZED\ZED\BZACLERK\Resolutions\ 10-17-00 Letters.doc FAIRFAX APPLICATION FILED: July 19, 2000 BOARD OF ZONING APPEALS: October 10, 2000 COUNTY TIME: 9:00 a.m. ------.~ - ·------V I R G I N I A October 3, 2000 STAFF REPORT VARIANCE APPLICATION NO. VC 00-P-105 PROVIDENCE DISTRICT APPLICANTS: Thomas S. Cherry PROPERTY OWNERS: Thomas S. and Mary C. Cherry SUBDIVISION: Villa D'Este STREET ADDRESS: 3115 Northwood Lane TAX MAP REFERENCE: 48-3 ( (26)) 1 LOT SIZE: 11 ,770 square feet ZONING DISTRICT: R-3 ZONING ORDINANCE PROVISION: 18-401 VARIANCE PROPOSAL: To permit construction of an addition to be located 4.0 feet from a side lot line. The Board of Zoning Appeals' decision does not become final until the day following the next official meeting day of the BZA, but not less than eight (8) days, whichever is the latter, unless the BZA waives this requirement. A copy of the BZA's Resolution setting forth this decision will be mailed within five (5) days after the decision becomes final. For additional information, call Zoning Evaluation Division , Department of Zoning and Planning at 324-1280, 12055 Government Center Parkway, Suite 801 , Fairfax, Virginia 22035. Board of Zoning Appeals' meetings are held in the Board Room, Ground Level, Government Center Building, 12000 Government Center Parkway, Fairfax, Virginia 22035-5505 . .. American with Disabilities Act (ADA); Reasonable accommodation is available upon 7 ~ days advance notice. For additional information on ADA call (703) 324-1334. \\S350CW01 \ZED\ZED\BERNAL\V AR IANC ES\VC 00-P-105,CHERRY .DOC VARIANCE APPLICATION VC OO - P-105 VC OO - P-105 CHE~RY, THOHAS S . FILEO 07/l,/OO TO FER HIT THE CONSTRUCTION OF AH ADDITION 4.J FEET ~ROH SIDE PROPERTY LINE ZONING DIST SECTION: 11-0401 03 · 0307 PARAGRAPH : 01-A 11,770.00 SQ FT OF LAND; DISTRICT - PROVIDENCE LOCATED : 3115 NORTHWOOD ROAO , FAIRFAX, VA . 22031-1014 ZOHED R-3 OVERLAY DtSTRtCTCSl : TAX HAP 048-3- / 2,/ / 0001- VARIANCE APPLICATION VC OO-P-105 VC OO·P-105 CHE ~RY, THO"AS $. FILED 07/19/00 TO PER"IT THE CCHSTRUCTION OF AH ADDITION 4 . 0 FEET FRO" SID[ PROPERTY LIME ZONING DIST SECTION : 11· 0401 03·0307 PARAGRAPH : 02-A ll ,770.00 SQ FT OF LAND; DISTRICT • PROVIDENCE LOC ATED : 3115 NORTHWOOD ROAD , FAIRFAX, VA . 22031 ·1014 ZONED R·3 OVERLAY DISTRICT soo' SCALE NOTU I. TAll ....,. l . l()H(: • ·) ) . LOT AA(A; 11,770 SQUAl • • AlQUIUD •MOS: flO!OT: )Ofl:CT Sllll: llnCT ef llfM: urm !J S. HO(;Hn: •r OlftWHC 15.7 ftFJ SECTION SCUDI lHCl05ID POllCH 11.HCCT 2 ()f(H POllOt l .4JUT s · WAU.S AS llOTCO S k 'SS'Oo" f .I rlHCCS ASNOTCO . l'll00056J GAAAGl ll.J rCCT 0 • I . T>tlS l'llorcJITY IS SC1l\o'Ul rt "-'llUC WATUI AND SfWCll• <( :;; 1. -IS HO OISOVAIU (WJ(NCl CW <;Mii( SfTfS Oii 0 . ._CllOUllDS ON TlllS l'llOPOITY. I. AU~ - OH TlllS l'\AT /IN. flQST1NC; U1USS « DIHOTD> AS l'll0f05fD. t . l/T1UTIU AU UtClfJtCNlllllD. 0a : ~i ~ ~~ .... « .... z0 f:t..~ I H ll"JJ••1·w z PLAT SHOWING TliE IMPllOVEMENTS ON LOT I SECTION 3 VILLA D'ESTE PllOVIOENCE OtSnlCT FAIRFAX COUNTY, VI RGINIA SCALE: 1• • 20' MAY 12, 200Q CHUlY ,.,...... IUllftft,, •• aotJ 90"'" IDICI MCHWAY A~~UllM ,... ,.,_ ,._,.._,.,...... ,....., , 299 · 00 VC OO-P-105 Page 1 DESCRIPTION OF THE APPLICATION Variance to permit the construction of a garage addition to be located 4.0 feet from a side lot line. Description of Variance Min Yard Req. Permitted Min. Proposed Variance Structure Yard * Extension Allowed location Req. 12.0 12.0 Variance Garage Side feet NA feet 4.0 feet 8.0 feet *Minimum yard requirement Sect. 3-307, CHARACTER OF THE AREA Zoning Use North R-3 Single Family Detached Dwelling South R-3 Single Family Detached Dwelling East R-3 Single Family Detached Dwelling West R-3 Single Family Detached Dwelling The adjacent residence on Lot 8 is located approximately 13.0 feet from the shared side lot line. BACKGROUND The BZA has heard the following application(s) in the vicinity: • Variance V 179-77 was granted on September 8, 1977 for Tax Map Number 48-3 ((26) 4, zoned R-12.5, on Barnsbury Court, to permit the construction of a greenhouse to be located 3.0 feet from a side lot line. (12.0 foot minimum side yard requirement. Approved before adoption of current Zoning Ordinance 8/78). N:\ZED\BERNAL\VARIANCE S\ VC OO-P-105, CHERRY.DOC VC OO-P-105 Page 2 ZONING ORDINANCE REQUIREMENTS Applicable bulk regulation(s) and additional location regulations are set forth on the previous page. This variance application must satisfy all of the nine (9) enumerated requirements contained in Sect. 18-404, Required Standards for Variances. If the BZA determines that a variance can be justified, it must then decide the minimum variance which would afford relief as set forth in Sect. 18-405. A copy of these provisions is included as Appendix 4. CONCLUSION If it is the intent of the BZA to approve this application, the BZA should condition its approval by requiring conformance with the conditions set forth in Appendix 1 of this report, Proposed Development Conditions. APPENDICES 1. Proposed Development Conditions 2. Applicant's Affidavit 3. Applicant's Statement of Justification 4. Applicable Zoning Ordinance Provisions \\S350CW01\ZED\ZED\BERNAL \VARIANCES\VC 00-P-105, CHERRY.DOC VC OO-V-105 APPENDIX 1 PAGE 1 PROPOSED DEVELOPMENT CONDITIONS October 3, 2000 1. This variance is approved for the location of a garage addition shown on the plat prepared by Kenneth W. White, dated, May 12, 2000, submitted with this application and is not transferable to other land. 2. A Building Permit shall be obtained prior to any construction and approval of final inspections shall be obtained. 3. Ttie addition shall be architecturally compatible with the existing dwelling. Pursuant to Sect. 18-407 of the Zoning Ordinance, this variance shall automatically expire, without notice, thirty (30) months after the date of approval unless construction has commenced and has been diligently prosecuted. The Board of Zoning Appeals may grant additional time to commence construction if a written request for additi<;>nal. time is filed with the Zoning Administrator prior to the date of expiration of the variance. The request must specify the amount of additional time requested, the basis for the amount of time requested and an explanation of why additional time is required. \\S350CW01\ZED\ZED\BERNAL I VARIANCES\ VC 00-P-105, CHERRY.DOC APPENDIX 2 Application · No (s) : (Count.y· a:isigned application number I s >, c;o be entered by Counc;y S;at t ) SPECIAL PERMIT/VARIANCE AFFIDAVIT DATE: 7-10-eD (enter date affi davit is notarized) I, Thomas S. Cherry , do hereby state that I am a n (ent~r 11ame o f appllcant or aut horized agent) (check one) [)(] applicant 1Co1-ZC60 [ } applicant's authorized agent listed in Par. l (a) below and that to the best of my knowledge and belief, the following information is true: ======1 . (a) The following constitutes a listing of the names and addresses of all APPLICANTS , TITLE OWNBRS, CONTRACT PURCHASERS and LESSEES of the land described in the application, and if any of the foregoing is a TRUSTBB* , each BBNEPICIARY of such trust, and all ATTORNBYS and RBAL BSTATB BROJCERS , and a ll AGKNTS who have acted on behalf of any of the foregoing with respect to the applicat ion: (NOTE: All relationships t o the appl ication listed above in BOLD print are t o be disclosed. Mu ltiple rela tionships may be listed together, e.g., Attorney/Agent, Contract Purchaser/ Lessee, Applicant/ Title Owner , etc. For a multi parcel application, list the Tax Map Number(s) of the parcel(s) for each own er.) NAME ADDRBSS RBLATIONSHIP (S) (enter first name, middle (enter number, street, (enter applicable relation initial & last name) city, state & zip code) ships listed in BOLD above ) Thomas S. Cherry 3115 Northwood Road Applicantrritle Owner Fairfax, VA 22031-1014 Mary C. Cherry 3115 Northwood Road Title Owner Fairfax, VA 22031-1014 (check if applicable) ( ] There are more relationships t o be listed and Par . (a) is continued on a ~special Permit/ Variance Attachment to Par . l (al # form. • List as fol lows : (name of trustee, Trustee f o r (name of trust, i f applicable), for the benefit of: (state name of each beneficiary) . Application No(s): (Col'nty -assigned ~pp lic atl on m11T\bcr (s ) , ::. o be entered by County S taff) SPECIAL PERMIT/VARIANCE AFFIDAVIT Page Two DATE : ·z.- I 0 - oV (enter date affidavi t is nota rized) ••••• ~•• • -•••••••• ~ • •••• •••••••••••••••••• • • ••••••• • • •• •• ••••••• • ~•••• •~· · • ••••••=••••• • ••• •••••• W••••s=•=• •••• 1 . (b) . The fol l owi ng constitut es a list ing** of the SHAREHOLDERS of all corporations disclosed in this affidavit who own 10\ or more of any class of stock issued by said corporation, and where such ccrporation has 10 or less sharehclders, a list~ng of all of the shareholders : (~ : Include sole proprietorships herein.) CORPORATION INFORMATION NAME & ADDRESS OF CORPORATION: (enter complete name &. number, street, city, state &. zip code) Not Applicable/None DESCRIPTION OF CORPORATION: (check one statement) There are 10 or less shareholders , and a l l of the shareholders are l i sted below. There are more than. 10 shareholders, and all of the shareholders owning 10\ or more of any class of stock issued by said corporation are listed below. There are mo re than 10 shareholders , but no shareholder owns . 10\ or more of any class of stock issued by said corporation, and no shareholders are listed below. NAMES OF THE SHAREHOLDERS: (enter first name, middle initial, last name & tit le) (check if applicable) ]There is more co rporation information and Par . l(b) is continued on a ~special Permit/Variance Attachment (l (b)# form. ** All listings which include partnerships or corporations must be broken down successively until (a) only individual persons are listed, or (b) the listing f or a corporation having more than 10 shareholders has no shareholder owning 10\ or more of any class of the stock . Use footnote numbers to designate partnerships or corporations which have further listings on an attachment page, and reference the same footnote numbers on the attachment page . · ~for~ SP/ VC- l (7/27/89lE-Vcrsion !8/18/ 99) Application No (s): (County-assigned application numhar (sl, to be en:ered by County Staff ) SPECIAL PERMIT/VARIANCE AFFIDAVIT Page Three DATE: 7- \0 - d)__ _ (enter date affidavit is notarized) 1~7- 2-GeD 1 . (c). The following constitutes a listing•• of all of the PA~TNERS , both GBNERAL and LIMITED , in any partnership disclosed in this affidavit : PARTNERSHIP INFORMATION PARTNERSHIP NAME & ADDRESS : (enter complete name & number, street, city, state & zip cocle) Not Applicable/None (check if applicable) ( l The abov.e-listed partnership has no limited partners. NAMES AND TITLES OF THE PARTNERS (enter first name, middle initial, last name & .title, e .g. General Partner, Limited Partner, or General and Lilllited Partner) (check if applicable) ( ) There· is more partnership information and Par. 1 (c) is continued on a "Special Permit/ Variance Attachment to Par. l(c)# form. ** All listings which include partnerships or corporations must be broken down successively until (a) only individual persons are listed, or (bl the listing for a corporation having more than 10 shareholders has no shareholder owning 10\ or more of any class of the stock. Use footnote numbers to designate partnerships or corporations which have further listings on an attachment page , and reference the same footnote numbers on the attachment page. ~ ..,.. ,,,,,., ,,,,,,,,,,.,,,.,~ ,,,,,,,,, Application .No (s): tCounty·assigned application nu"-ber (sl ,b t o e entered by County Staff I SPECIAL PERMIT/VARIANCE AFFIDAVIT Page Four DATE: 7-10- o:D (_e_n_t_e_r~d-a-t~e~a~f-f....,...idavit is notar ized) 2. That no member of the Fairfax County Board of Zoning Appeals or Planning Commission or any member of his o r her immedi ate bousehold owns o r has any financial interest in t he subject land either i ndividually. by ownership of s tock i n a co rpo ration owning suc h land, o r through an i n:erest i n a partnership owning such land. BXCRPT AS FOLLOWS : (NOTE : If a nswer is none , enter "NONE" on line b elow .) None (check if applicable) [ J There a re more i nterests to be listed and Par . 2 is continued on a "Special Permit/Variance Attachment to Par . 2 " f orm. 3. That within the twelve-month period prior to the filing of this application, no member of the Fairfax County Board of Zoning Appeals or Planning Commiss ion or any member o f his or her immediate household, either directly or by way of partnership in which any of t hem is a partner, employee. agent, or a ttor ney, or through a partner of any of them, or through a corporation in which any of them is an officer , director, employee, agent, or attorney or holds 10\ or more of the outstanding bonds or shares o f s tock of a particular c lass, has . or has had any business or financial relationship, other t han any ordinary depositor or customer relationship with or by a retail establ ishmen t, public utility, or bank, includi ng any gift or donation having a value of $200 or more, wi th any of those listed i n Par. l above . BXCBPT AS FOLLOWS : (NOTE: If answer is none, e nter "NONE " on line below .) None {check if applicable) ( J There are more disclosures to be listed and Par . 3 i s continued on a "Special Permit/ Vari ance Attachment to Par. 3" form. ======••••••c3 ======•••• == = ~ ======~••••••~=====s======~••• s :=:= 4 . That the information contained in this affidavit is complete and that prior to eac h and every public hearing on this ma tter, I will reexamine this affidavit and pr ovide any changed or s upplemental information, including business o r financial relationships o f the type described in Paragraph 3 above, that arise on or aft er the date of this application. WITNESS the following aignature: {check o ne) [ ] (type name & title of signeel Subscribed and s~7,7fore 11\e t!:iis /Q day the S tate /Co~ .of ~,::{,) ~ My co~i osi on expires, jf 2r~~ I ro~ "i"C·' ''"'"'" ..... ,_ "''""; APPENDIX 3 foly 10, 2000 Fairfax County Zoning Evaluation Division Department of Planning and Zoning 12055 Government Center Parkway, Suite 801 Fairfax, VA 22035 Dear Sir or Madam: This is a statement of justification fo r a minimum side yard variance located at 3115 Northwood Road (Tax map #: 48-3-0026-1). The intent is to replace an existing attached 12-foot wide single carport with and an attached 20-foot wide two-car garage. This will add 8 feet to the width of the house and bring us 4 feet from the property line. The subject property was purchased on 5th August 1993 as the primary residence of Thomas S. Cheriy and Mary C. Cherry. We are planning for this to remain as our primary residence for a very long time. We would prefer to improve the property to meet our needs than to move from a neighborhood that we love. The property has exceptional narrowness. Although the property is 11 , 770 square feet., it is unable to accommodate a two-car garage without a variance. There is no other feasible place on the property to construct a garage. The rear yard has extreme elevation that prevents the addition of a detached garage. The rear property line is approximately equal to the top of the main house section. The addition of a detached garage would not be in the character of the neighborhood nor feasible due to the rapid change in elevation. The combined conditions of topology, narrowness and single covered parking are unique to this property in the neighborhood. The strict application oftltis zoning ordinance would produce undue hardship in that there is no other feasible place to build a two-car garage to allow us to have the increased security of our property and shelter from the weather that we are seekin~. Security - In the last few years, several homes in Villa D'Este have been broken into including bOth of my family vehicles wltile parked in the carport and driveway (2/ 12/ 1999 case# 99043001809). My wife and I both work and having no cars in the carport lets people know that the house is vacant. Additionally, my work requires me to come and go during odd times. A garage would enhance my own personal safety. We have installed an alann system as an initial attempt to secure the property, but would like the added security of locking up our cars and concealing them from view. Shelter - We have small children (two toddlers and a baby on the way) and it is difficult getting them in and out of the cars during inclement weather. All the surrounding homes in Villa D'Este have 20' wide carports that could easily be converted to a two-car garage. Several homeowners have already converted their carports to 20' or wider garages. Of the 40 homes in Villa D'Este, 31 have covered parking for 2 or more vehicles (78%). July 10, 2000 Page 2 Our property is the only property of the surrounding properties on Northwood Road that does not have covered parking for two vehicles. The authorization of the variance will not be of substantial detriment to the adjacent property. The proposed garage is out of the view of their front. side and rear entrances. as well as the window views of their main living areas (kitchen, dining room. family room and living room). The granting of the variance will not change the character of the zoning district. The proposed garage is similar to several others in the neighborhood (see attached photos). We believe that the variance is in the harmony and intended spirit of the Ordinance and is not contrary to public interest. We have taken care to design a garage that is similar to others in the neighborhood and that will not detract from the overall appeal of the property. Sincerely, Thomas S. Cherry DEPAD . 1 r::c~ , rr TivfE.vr . 0Fp,~, . 1 v:~DC: l1i~lN1Nr. ATTACHMENT 2 - Page I of 2 . '.)4ND zoM Rf.QUIRED STANDARDS FORA VARIA~CE to z Pursuant to Section 18-404 of the Zoning Ordir.ance, in order to.grant a variance, the BZA shall make 2000 specific findings .based on the evidence before it that the application satisfies all of the f~)l)'j,-0 8 enumerated requuements. VG t V4l U4r10N l . That the subject property was acquired in good faith. D!V131 0 The subject property was purchased on 5th August 1993 as the primary residence of Thomas S. l/V Cherry and Mary C. Cherry. We are planning for this to remain as our primary residence for a very long time. We would prefer to improve the property to meet our needs than to move from a neig~borhood that we love. 2. That the subject property has at least one of the following characteristics (note that "the effective date of the Ordinance" was August 14, 1978): A. Exceptional narrowness at the time of the effective date of the Ordinance; The property bas exceptional narrowness. Although the property is 11,770 square feet, it is unable to accommodate a two-car garage without a variance. There is no other feasible place on the property to construct a garage. B. Exceptional shallowness at the time of the effective date of the Ordinance; C. Exceptional size at the time of the effective date of the Ordinance; D. Exceptional shape at the time of the effective date of the Ordinance; E. Exceptional topographic conditions; . The rear yard bas extreme elevation that prevents the addition of a detached garage. The rear property line is approximately equaJ to the top of the main house section. The addition of a detached garage would not be in the character of the neighborhood nor feasible due to the rapid change in elevation. F. An extraordinary situation or condition of the subject property; or G. An extraordinary situation or condition of the use or development of property immediately adjacent to the subject property. 3. That the condition or situation of the subject property or the intended use of the subject property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted by the Board of Supervisors as an amendment to the Zoning Ordinance. The combined conditions of topology, narrowness and single covered parking are unique to this property in the neighborhood. 4. That the strict application of this Ordinance would produce undue hardship. (A zoning related hardship is a physical, land-based hardship.) The strict application of this zoning ordinance would produce undue hardship in that there is no other feasible place to build a two-car garage to allow us to have the increased security of our property and shelter from the weather that we are seeking. Security - In the last few years, several homes in Villa D'Este have been broken into including both of my family vehicles while parked in the carport and driveway (2/12/1999 case# 99043001809). My wife and I both work and having no cars in the carport lets people know that the house is vacant. Additionally, my work requires me to come and go during odd times. A garage would enhance my own personal safety. We have installed an aJarm system as an initial attempt to secure the property, but would like the added security of locking up our cars and concealing them from view. Shelter - We have small children (two toddlers and a baby on the way) and it is difficult getting them in and out of the cars during inclement weather. . ATTACHl\1ENT2-Pa~c2of2 REQLJIRED STANDARDS FOR A VARIANCE 5. That such undue hardship is not shared generally by ot her properties in the same zoning district and the same v!c!nity. All the surrounding homes in Villa D'Este have 20' wide caq10rts that could easily be converted to a two-car garage. Several homeowners have already converted their carports to 20' or wider garages. Of the 40 homes in Villa D'Este, 31 have co,·ered parking for 2 or more vehicles (78%). 6. A. That the strict application of the Zoning Ordinance would effectively prohibit or unreasonably restrict all reasonable use of the subject property, or The property is the only property of the surrounding pro1>erties in Villa D'Este that does not have covered parking for two vehicles. B. That the granting of a variance will alleviate a clearly demonstrable hardship approaching confiscation as distinguished from a special privilege or convenience sought by the applicant. 7. That authorization of the variance will not be of substantial detriment to adjacent property. The authorization of the variance will not be of substantial detriment to the adjacent property. It is out of the view of their front, side, and rear entrances, as well as the window views of their main li ving areas. 8. That the character of the zoning district will not be changed by the granting of the variance. The granting of the variance will not change the character of the zoning district. The proposed garage is similar to others in neighborhood (see attached photos). 9. That the variance will be in hannony with the intended spirit and purposes of this Ordinance and will not be contrary to the public interest. We be.lieve that the variance is in the harmony and intended spirit of the Ordinance and is not contrary to public interest. We have taken care to design a garage that is similar to others in the neighborhood and that will not detract from the overall appeal of the property. 18-404 Requi~ed Standards for Variances To grant a variance t.he _BZA shall make specific findings based on the evidence before it that the application satisfies all of the following enumerated requirements: 1. That the subject property was acquired in good faith. 2. That the subject property has at least one of the following characteristics: A. Exceptional narrowness at the time of the effective date of the Ordinance; B. Exceptional shallowness at the time of the effective date of the Ordinance; C. Exceptional size at the time of the effective date of the Ordinance; D. Exceptional shape at the time of the effective date of the Ordinance; E. Exceptional topographic conditions; F. An extraordinary situation or condition of the subject property; or G. An extraordinary situation or condition of the use or development of property immediately adjacent to the subject property. 3. That the condition or situation of the subject property or the intended use of the subject property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted by the Board of Supervisors as an amendment to the Zoning Ordinance. 4. That the strict application of this Ordinance would produce undue hardship. 5. That such undue hardship is not shared generally by other properties in the same zoning district and the same vicinity. 6. That: A. The strict application of the Zoning Ordinance would effectively prohibit or unreasonably restrict all reasonable use of the subject property, or B. The granting of a variance will alleviate a clearly demonstrable hardship approaching confiscation as distinguished from a special ¥ivilege or convenience sought by the applicant. 7. That authorization of the variance will not be of SL: 'ltantial detriment to adjacent property. 8. That the character of the zoning district will not t : hanged by the granting of the variance. 9. That the variance will be in harmony with the in' ded spirit and purposes of this Ordinance and will not be contrary to the public interest. 18-405 Conditions Upon a determination by the BZA that the applica: rias satisfied the requirements for a variance as set forth in Sect. 404 above, the BZA :all then determine the minimum variance that would afford relief. In authorizing such variance the BZA may impose ·.Jch conditions regarding the location, character and other features of the proposed stn... .. re or use as it may deem necessary in the public interest and may require a guarantee or be 1 to insure that the conditions imposed are being and will continue to be met. County of Fairfax, Virginia To protect and enrich the quality of li fe fo r the people, neighborhoods and diverse communities ofFairfax County September 21 , 2010 Thomas S. Cherry 3115 Northwood Road Fairfax, Virginia 22031 Re: Special Permit Application SP 201 O-PR-054 Thomas S. Cherry Dear Mr. Cherry: This letter is to inform you that your special permit application to be heard before the Fairfax County Board of Zoning Appeals has been accepted and forwarded to the Special Permit and Variance Branch of the Department of Planning and Zoning. Your public hearing has been scheduled for December 1, 2010, at 9:00 a.m., and will be held at the Board Auditorium at 12000 Government Center Parkway. However, as of this date, the affidavit submitted with your application has not been approved by the County Attorney's Office. If the submitted affidavit is deficient, you will be contacted by the Office of the County Attorney. If we do not have an approved affidavit at least fifty (50) days prior to the public hearing, your public hearing date may be jeopardized and the hearing rescheduled. Approximately 30 to 40 days prior to the public hearing, you should receive a notification package containing instructions on how to notify adjacent property owners of the public hearing. Upon receipt of this package, if you have any questions, please contact the Clerk's office at 703-324-1280. If you have any questions, please contact Deborah Hedrick, your Staff Coordinator, at 703-324-1 280. Sincerely, ii~J:~ Clerk to the Board of Zoning Appeals CC: Mike Congleton Joe Bakos Department of Planning and Zoning ~ 12055 Government Center Parkway, Suite 80 1 Fairfax, Virginia 22035-5509 ~< Phone 703 324-1280 ~ Excellence * Innovation * Stewardship FAX 103 324-1201 ~·~~--~.. ~;~a Integrity * Teamwork* Public Service www.fairfaxcounty.gov/dpz/ & ZONING COUNTY OF FAIRFAX APPLICATION No: Sf' {)CJ©- fR-054 Department of Planning and Zoning (Staff w~~ Zoning Evaluation Division Department of Planning &Zoninr 12055 Government Center Parkway, Suite 801 Fairfax, VA 22035 (703) 324-1290, TTY 711 AUG 31 2010 www.fairfaxcountv.gov/dpz/zon i 112:/applications Zoning EvaluationDivision APPLICATION FOR A SPECIAL PERMIT (PLEASE TYPE or PRINT IN BLACK I K) NAME Thomas S. Cherry MAILING ADDRESS 3115 Northwood Road Fairfax, VA 22031 APPLICANT PHONE HOME ( 703 ) 255-3084 WORK( ) PHONE MOBILE ( 571 ) 239-4200 PROPERTY ADDRESS 3115 Northwood Road Fairfax, VA 22031 TAX MAP NO. SIZE (ACRES/SQ FT) PROPERTY 0483 26 001 11 ,770 SQ FT INFORMATION ZONING DISTRICT MAGISTERIAL DISTRICT R-3 Providence PROPOSED ZONING LF CONCURRENT WITH REZONING APPLICATION: ZONING ORDINANCE SECTION 8-922 SPECIAL PERMIT REQUEST PROPOSED USE INFORMATION To replace existing carport and storage area with a garage and workshop. NAME MAILING ADDRESS AGENT/CONTACT INFORMATION PHONE HOME( ) WORK( ) PHONE MOBILE ( ) MAILING Send all correspondence to (check one): Applicant -or- Agent/Contact The name(s) and addresses of owner(s) of record shall be provided on the affidavit form attached a~ made part of this application. The undersigned has the power to authorize and does hereby authorilje Fairfax County staff representatives on official business to enter the subject property as necessary tq process the application. I Thomas S. Cherry P I TYPE/PRINT NAME OF APPLICANT/AGENT APPLICANT/. NT 1 \~q\ ~'° ~\0 - 0\%() DO NOT WRITE IN THIS SPACE 9 : 041·3- /2'/ / 0001-