Court Upholds Building Height Limits on Substandard Lots
By KATHLEEN NEBEKER
Falls Church Times Staff
May 6, 2010
Falls Church City’s height restrictions for infill houses on substandard lots were upheld by the Virginia Supreme Court in a ruling handed down last month. The court confirmed a municipality’s right to impose height and other building restrictions on substandard lots within the same zoning district, as long as all substandard lots are treated uniformly. Details of the ruling can be found here.
In 2006, on the heels of the real estate bubble, the City’s zoning code was amended to limit the height of infill houses built on substandard lots. Concerns motivating the code change centered on the impact of new infill houses on the character of established neighborhoods, the loss of trees, possible shading of adjacent properties, and increased storm water run-off and stream erosion. In June 2006, the City initiated a process to examine the effects of infill development. Changes to the code were discussed at several public hearings, after which Code 1799 was adopted in December 2006.
Per Code 1799, height limitations for infill houses on substandard lots are a ratio of the actual substandard lot size to the standard lot size for the district multiplied by the maximum height allowed. Specifically:
R1-A: (lot size/11,250) x maximum height of 35
R1-B: (lot size/7,500) x maximum height of 35
Under the code, no houses built on substandard are required to have a height less than 25 feet.
What’s next? The Zoning Ordinance Rewrite may further address the incompatibilities of infill houses on substandard lots within established neighborhoods. Or, it may not. This is a charged topic, which is quite understandable, considering the tension at play between individual property rights and zoning to protect adjacent properties. According to City planning staff, the final zoning rewrite draft will likely be scheduled for public review this fall.
By Kathleen Nebeker
May 6, 2010
Thanks for writing about this issue — hope to see more coverage of the zoning ordinance rewrite.
The language in our code allows substandard lots to be developed “if they cannot be reasonably combined with other property to meet minimum size requirements” — yet the City allows people to split off a substandard lot and develop it…. how can you argue that it cannot be combined if it WAS combined with another piece of property? I am not against infill (if it is done right) but I maybe City needs to revise that language to be honest about what they actually allow. Then, ideally, they should consider the impact of more than just height — for instance the current code allows side yard setbacks to be reduced to as little as 7 1/2 feet for a substandard lot — it’s 15 feet for everyone else…..
Yes, great article, thank you Kathleen.
There are many issues with these infills especially water run off which occur with sub standard and standard lots. Too many times contractors put in drainage, bury the pipes and have the run off go into neighbors yards. This practice has been around for years and unknown too many residents their run offs are flooding out their neighbors yards.
The City has tried to address this with additional drainage and rain gardens, but we need to look at a more integrated approach of City and residents working together to address excessive run off especially as we enter into mosquito season.
I haven’t read the zoning restrictions in quite some time but as I remember, the height measurement is defined as the midpoint between the eave and ridge roof lines. If that’s still true, you can design a very steep roof that starts very low on the house (perhaps even at ground level) and still has a very high ridge line. We could end up with a lot of 3 and 4 story homes that look like the first letter of the alphabet. Don’t know if that’s bad, but I doubt it was the intent of the knee-jerk zoning change.
Thanks Kathleen, and sorry I did not respond sooner to provide more background before you put this up. The particular code language, which was part of what I proposed and wrote in 2006, was the only legislative product of years of floundering through the issue, (which as Suzanne says we really have yet to address squarely). I should not say this about my signal legislative accomplishment, but my idea was to do something at least to regulate what could be built even though the regulation we adopted was so weak as to be nearly irrelevant (I believe of all of the homes built since 2006 on substandard lots, only the “Terrible Twin Towers at 700-702 East Broad would have been affected by the limit).
Many of you know that I unsuccessfully sued the City in 2006 regarding the exact issue of the prior construction of a home straddling a substandard lot line. There have been about eight decisions of the VA Supreme Court in recent years upholding the principal that anything the City chooses to do (some of which I agreed with and some not) would not be overturned judicially. I could not believe our good fortune when Mr. Schefer (rest his soul) sued to challenge the ordinance, and again when the VA Supreme Court agreed to hear the case, which I had every expectation would result in a decision not just sustaining the specific action we took, but also approving the principal that local governments have very broad power to regulate land use. Now we need to summon the political will to use those tools to match our rhetoric about neighborhood preservation.
About two years ago the Council embarked on a comprehensive zoning re-write, appointing a Zoning Ordinance Advisory Committee (ZOAC) whose members have been meeting publicly with staff more than monthly. Staff and ZOAC are nearing completion of a public comment draft package, and then we expect to have hearings devoted to the residential and commercial code issues and eventually adopt a 21st Century Zoning Ordinance. I have more to say on the specific issues surrounding our neighborhood (ie residential) zones, but for now I am encouraged by the willingness of the ZOAC to tackle these issues in a meaningful way. While the residential issues are important and will be contentious, the real heart of the endeavor is to produce better tools for economic development to implement our Comprehensive Plan (which is also set for its five year refresh in 2010).
I’d love to have someone (FCT?) dig in and try and lay out all the issues related to this substandard lot thing. I’ve learned a little bit about it but not enough to really understand what’s going on.
From a high level it sounds like this… someone owns a lot that is “sub-standard” – which means (as far as I can tell) that it isn’t big enough (or shaped right) to allow construction of a building that would meet existing building standards.
If the building standards were in place before the owner came to own the property then shouldn’t they be out of luck if they want to build something on it?
I can see a problem where an owner has new rules applied to them – because it would reduce (maybe significantly) the value of their land. Is that the root of this problem – that long-time owners are having the value of their land reduced by *new* limits being placed on them?
The height measurement was also addressed in the 2006 changes. It is measured from the average original grade to the mid-point of the highest roofline, which from a building practice perspective is very easy to calculate, and different roof styles are provided for.
Rob, it is your right to disagree, but of all of the things that could be said of the City’s handling of Zoning since the adoption of the 1959 [!] code, knee-jerk would have to be the most inapplicable.
knee-jerk adj (informal disapproving)
1. given or occurring immediately and automatically, without thinking, and usually expressing habitual attitude or prejudice
2. tending to respond in the same way to any situation
Andy, these are some of the very questions that will be addressed and which are being discussed in the ZOAC (and by the Supreme Court decision). The very short version of the history is that the 1944 Zoning Ordinance required 50′ average width, but the 1959 code changed it to 60′ but provided a “grandfather” clause. Until 2003, there were no instances of development of these lots, when apparently the entire linguistic history of Western Civilization was erased by the founding of Google or something.
Basically, the lot requirements are for area and width (now measured at the front setback line). R-1A requires 75′ width and 11,250sf area, while R-1B requires 60′ and 7,500. Setback or yard requirements are different as well: 40′/30′ rear, 15′/10′ side and 25-30′ minimum in the front (but not less than the average of the neighboring houses, another issue to debate). Are these the right numbers? Perhaps not, but the fundamental question is whether an individual property owner should decide these things or whether there should be regulations applied to the use of land based on community standards. I say as a neighbor I have a property right in these regulations that needs to be weighed against the rights of owners to do as they please, and that we need to all get together and figure something out.
More broadly, the issue for the City is the cost of increased single family development. Our fiscal model suggests strongly that the government service cost is more than the expected tax revenue, and unlike larger developments where developers pay proffers for school capital and other infrastructure costs, the local government has no power to charge the costs to the source. It is true that school population has fluctuated widely over the decades, but there is no question that a measurable part of the recent increase in population is attributable to added single family homes, and we know that the capital cost of adding a seat to our schools is $50,000 (MEH cost $30M for 600 seats).
Many congratulations to Dan! After years of effort, I was very pleased to support you on this important change. Anyone who thinks there are easy answers here has never spent three years dealing with the substandard lot issue (I have). Dan’s initiative was a clean and, I think, very effective way to attack a major part of the problem.
I would like to do away with the development of substandard lots altogether but I am afraid that is not a dominant view in the community.
I wish I had more luck stopping pipestems. But, again, people hate them until they are threatened with being taken away — then the homewoners come out of the woodwork to defend their right to develop their properties.
Again, great job Dan!