ANALYSIS: Clear-Cut Lot Alerts Residents to New Construction; Results in Residential Zoning Code Scrutiny
Image from Google Maps
By SUZANNE UPDIKE
Special to the Falls Church Times
July 15, 2010
On July 6, 2010, the City’s Zoning Administrator issued a permit to New Dimensions, Inc. to construct a new home on Forest Drive, and the developer went to work. The clear-cut lot drew the attention of the neighborhood and when neighbors went to City Hall to look at the plans, they were upset to find the City had issued a permit allowing the proposed house to extend 16 to 19 feet past the surrounding homes. Despite neighboring lots with 47 and 50 ft front yards, NDI is only required to use a 30 ft setback. Neighbors on Forest Drive are planning to appeal to the Board of Zoning Appeals later this month. Suzanne Updike, a neighbor not party to the appeal, researched the City’s Zoning Code and has agreed to write a series of analyses for the Falls Church Times.
PART 1. FRONT YARD SETBACKS
The City of Falls Church has been working with a consultant, Clarion Associates, and the Zoning Ordinance Advisory Committee to rewrite its zoning ordinance. Public review (originally planned for fall of 2009) is set for fall 2010. While much of the rewrite will focus on commercial zoning, residential portions of the code also need attention as Falls Church City wrestles with the effect of new infill houses in its neighborhoods.
One hot topic is front yard setback, or how close a new house can be built to the street. The current zoning code requires that the minimum front yard for new construction, new buildings, and new additions to existing residential structures… shall be the average of the nearest front yards on either side (with some exceptions for homes with only one neighboring building, corner lots, etc.).
The required front yard setback distance for this new construction will vary depending on surroundings, but no front yard shall be less than 30 feet in an R-1A district and 25 feet in an R-1B district, and that no front yard need be more than 50 feet. (Sec 48 -1102 (c). A tape measure is needed to find the setback:
Each yard shall be measured horizontally to the nearest point of the building or nearest line of the use area, except for allowable projections. (Sec 48-11-02 (d)).
Historically, this is how the City enforced setbacks for new construction. Despite the clear intent of the zoning ordinance to require averaging of setbacks (to determine a setback of no less than 25 or 30 ft and no more than 50 feet), recently the Zoning Administrator has only been requiring a 30 ft setback in R-1A and a 25 ft setback in R-1B.
The City Is Challenged
In the fall of 2005, neighbors challenged a City permit over problems with building setbacks for a new home at 807 Ridge Place (including the lack of averaging and the way that the Zoning Administrator measured the lines). The Board of Zoning Appeals agreed with the neighbors, but later rescinded its appeal because of a technicality on when the BZA appeal can be filed. The neighbors filed a lawsuit in Arlington County Court because the City did not follow due process for an action to rescind at the January 2006 meeting.
As part of the court settlement (Melissa Teates et al. v. Board of Zoning Appeals for the City of Falls Church) on April 4, 2006, the City explicitly agreed that it would average the nearest front yards as set forth in the zoning ordinance in all future cases:
The substance of the December 15, 2005 BZA Decision, referred to in the Appeal and Petition for Writ of Certiorari as the “Final BZA Decision “ will be respected and followed by the City and the BZA in all future cases unless and until legislation is changed through the proper hearings according to law. This shall mean, as reflected in the Minutes of the BZA from December 15, 2005 Decision, that setbacks will be measured from the right-of-way line wherever that line may go including arcs or irregularities, and that City Code Section 38-28(b)(4) shall be interpreted and enforced in this manner except with respect to exceptions set forth therein. This shall also mean the setbacks from the right-of way lines shall be determined by the average of the nearest front yards on either side of the lot in question except for the exceptions set forth in City Code Section 38-28(b)(3)
The City Still Doesn’t Follow the Code
Despite the City’s express agreement to use the averaging method, the city handout “Required Residential Lot and Yard Sizes” does not reference this requirement to average the nearest front yards, and the Zoning Administrator appears to not be requiring the averaging method to determine the setback.
In the current case on Forest Drive, the City permit to NDI requires only a 30 ft. setback, despite neighboring lots with 47 and 50 ft front yards. Neighbors are organizing an appeal to the BZA. The essence of the appeal will be that the front yard setback is not in compliance with the regulations of the zoning code which requires that the minimum front yard be determined by averaging the nearest front yards on either side. The neighboring yards are 47 and 50 feet back from the property line (57 and 60 feet from curb). The proposed house is planned to be built 30.5 feet from the property line (40.5 ft from curb) – 18 feet out of compliance.
Must citizens file appeals to get the City to enforce its own ordinance, one which it explicitly agreed to follow in the 2006 court settlement?
The Zoning Ordinance Rewrite
With the Zoning Ordinance Advisory Committee rewriting the code, now is the chance to clarify setback allowances and other current practices so that it can be applied consistently. Falls Church City citizens will have a chance during the lengthy public comment period to suggest ways to strengthen the zoning ordinances.
1) It would be helpful to change the definition of front yard to explicitly define it as the distance to the residential structure, removing any ambiguity.
2) The zoning ordinance should also provide more detail on how to measure and average. The Montgomery County, Md. ordinance provides multiple “methods” to cover different situations – diagrams with explicit directions clearly showing which neighboring lots should be included in the averaging (pipe stem lots are excluded, for example) and at which point to measure on irregular lots.
3) The definition for an average setback should be formalized. Montgomery County, Md., calls the average the Established Building Line. The City of Annapolis calls it the Established Front Yard.
4) The City should also consider whether the averaging should look at just the two neighboring houses (as in current code), or provide flexibility to look at a larger area: In Montgomery County, you may either average the two adjoining lots or the lots within 300 feet in each direction. In Annapolis, the “established front yard” is computed using either the two neighboring structures or the average of the block (excluding the largest and smallest lots), depending on which would provide greater consistency.
5) The current approach sets a 25 or 30 ft minimum – does Falls Church have streets where the existing front yard setback pattern is less than that? If so, perhaps the code should allow averaging to provide a smaller yard on those streets. This is allowed in Arlington and Annapolis, where single family homes can be close to the street.
Citizens should be prepared to voice their opinions on the zoning ordinance rewrite when it is finally released for public comment. What happens in the interim? Watch the action this summer on Forest Drive.
By (see byline)
July 15, 2010
In light of the BZA and court decisions, has the city offered a rationale for not adhering to the code in this case?
Also, if the neighbors win the appeal, will the new house – it will probably be mostly built by then – be torn down? Would that be a possibility?
Great article.
Been there: done that. When we built a house at the opposite end of the Little City, people complained it was set back “too far” from the street. We did it to save a beautiful boxwood garden and a couple of trees plus add individual character to the beautiful house. NIMBYs then; NIMBYs now! Sadly, NIMBYs forever??
Set backs are stated in “the code”. If it says 30 feet, that’s what it means. If it needs changing, change it. Don’t run to court whining all the way (and to and from the attorney’s bank!).
I see that NIMBY-itis is still alive and well in my former home city. You live in the friendliest user-friendly location in metropolitan DC. Yet some just don’t like change and yet, that’s exactly what they so proudly voted for recently.
Enjoy the construction noise and mess. It only lasts for a little while!!
The code has only a minimum, no maximum, but it does clearly require the averaging of adjacent setbacks in order to avoid a “sawtooth” pattern. Here are the words:
“the minimum front yard for new construction, new buildings, and new additions to existing residential structures *** shall be the average of the nearest front yards on either side….” [but can not be required to be more than 50 feet].
The City has at turns ignored and neglected this provision and many others, which among other things has allowed people such as Dudley McDonald to walk away with mountains of cash – it must take a big telescope to see all of this from your glass house Dudley.
Another notorious example of the neglect of this law is the home next to Tallwood on Broad Street (which was objectionable for several reasons). Tallwood is over 100 feet from the street, so the averaging of the two should have required a 50′ setback, but the City’s calculator wasn’t capable of computing this very complicated formula. Dudley McDonald was right about one thing: if the City wished to change this code it ought to have been changed and not just ignored.
Great article Suzanne! Clear and to the point. I’m looking forward to the next version, maybe with a bit more on what is actually happening at the site (in my quick look, the grading plan didn’t seem to conform with the clearing plan – i.e., it looked like the grading plan showed the trees that were now gone as being preserved) Unfortunately, you really have to wonder how we put so much time into writing a code only for the city officials to ignore it or why the city has delayed the rewrite? Again – the word in city hall seems to be “build, baby, build.” The developers are making short term windfalls and the council looks the other way in desperate hopes of getting new tax rateables. Meanwhile the overall character and finances of the city sink. I am sure there is a better way to insure quality infill and neighborhood preservation while we try and move the city to a better place financially.
I also wonder what happened to our effort to save mature trees? Two lots under construction on Lincoln Ave (by the park) were scraped clean before building.
In my reads of the residential zoning code, I’m not convinced the code is written to enforce the more stringent of the two stated standards (standard 1 being the specific number of feet; standard 2 being the averaging method). The two standards seem to be in place to allow construction of a home, for example, in an R1A zone with the vast majority of homes set back only 20 feet along the same 20 foot building line (instead of forcing the new home to be the only one on the block set back 30 feet). By that read the zoning administrator is executing his job properly and the specific NDI example cited here should proceed as designed and approved.
Here’s hoping the BZA and/or courts side with landowner’s rights to build a conforming project.
in response to Rob Kahr — actually, that scenario (averaging homes with a 20 feet established building line to a get a setback of less than 30 feet for a new home) is not allowed under current code without a variance. Currently the R-1A zone requires a setback between 30 feet and 50 feet.
It might make sense to modify our code during the zoning rewrite to allow averaging to produce a smaller setback where homes are close to the street (my point number 5 in the article).
It is an issue of context — how can an infill house fit in with the existing homes? If they are set back further than the minimum, than our code requires that the infill home also be set back further.
Touring virtually via Google street view ( http://preview.tinyurl.com/2a3xjfh ), it looks as if many of the houses on Forest are set back 30 feet. The City’s “hidden” GIS app on their web site has a tool which seems to confirm this – visit http://gisweb.fallschurchva.gov/ , zoom in so you can see the lots on Forest, and use the measurement tool (the ruler with the question mark above it) to get the distance from the lot line to the edge of the house. Certainly true for houses on the East side of the street.
If you zoom really close in on the gisweb site, you can also see the lot lines do not align with the street’s curb – in front of 217 Forest the lot line is 10 to12 feet off the curb. A house built 30 feet from the lot line will be 40 feet from the curb… doubt that will seem at all out of place on this street of well maintained, mixed-sized houses.
Nice looking neighborhood, BTW!
@TFC
That lot on Lincoln is a-whole-nother issue. That lot had one house on it. Now there will be 2.
I know…I was shocked to see the ‘dozers had come through and scraped it smooth as a baby’s behind then clearly make two lots from it. There was a huge stand of trees that buffered the bike path at the back of the lot. All I can say is the new owners better not be complaining about seeing folks on the path. They will also need an extra ton of AC since the canopy is gone.
Great article. Let this be a warning to all homeowners as to how important this code rewrite process is and not just for residential infill development. This is simply the tip of the iceberg.
Sadly our experience on East Jefferson Street in raising objections to the commerical development at the end of our residential street based on the the City’s building code was the rude awakening that the City simply doesn’t follow the code and routinely waives any obstacles with special exception permits. We mistakenly thought the code meant what it said and that we could rely on it to protect our properties from some of the negative effects of redevelopment. (BTW – we are OK with development but development that is done in a sensitive way to the adjacent neighborhood and provides for an appropirate transition between commercial and residential spaces.)
So, the re-write is long overdue, it is just a shame that our Council, Planning Commission and City Planning Staff have felt justified in moving forward with projects ignoring the code prior to a full vetting of such modifications. The patchwork quilt of exceptions that we have been left with do not serve anyone well – either developers or residents.
The devil will be in the details and there are a multitude of issues to consider. Our hard-learned lessons on East Jefferson St have been many but, a few elements to alert concerned residents to include: 1) The need to integrate the process and have a process where the land use approval and site plan come forward simultaneously. The efficiency of that system cannot be understated. The predictability for the surrounding neighborhood as well as the developer about how, what and where the impacts will be can be resolved (obviously not to everyone’s satisfaction, but thoroughly vetted and resolved) at one time. Otherwise, we leave our Planning Commission in the position of having very limited means to address conflicts with the code as the overall land use has already been approved by Council. Hence, they ignore the code via special exception and move on. 2) Another issue that is particularly relevant when commerical developments abut residential is having set-back requirements that apply for below grade areas as well as above ground. Our neighbors will soon have parking garages that are within 27 inches of their property line in spite of a building code that states on Pg. 67 (e) (1) “Buffers shall be continuous pervious planting areas with adequate space to support vegetation both above and below ground. No parking, drive aisles, and utilities shall be permitted in the buffer.”
I look forward to a day when Falls Church actually has a sensible, understandable code that has had citizen input and even more to the time when the City follows the code as written.
TFC: I find the comment:
“All I can say is the new owners better not be complaining about seeing folks on the path”
Very welcoming to our new neighbors who are moving into our little City for all the small time charm and community atmosphere we love and respect. Exactly the kind of atmosphere we want to cultivate as we tout ourselves as being all-inclusive and having small-time charm.
Also: maybe our zoning office doesnt have the manpower to acutally inspect what is occurring after permits are issued, or even scrutinize permit application to rigorously because they were slashed and burned this budget cycle. Not saying its true, but maybe doing more with less just doesnt work. Just some thoughts, not declarations!
The average of 47 and 50 is 30.5? That is really NEW math! Exactly how is the City explaining this? Perhaps in part 2?
Under FCC Code Section 48-1102(c), the minimum setback in an R-1A district (which this site is located in) is 30 feet. The maximum setback is 50 feet. Thus, the City Council intended that the depth of front yards for new construction be within a range between 30 and 50 feet. Averaging of the front yard depth of neighboring propeties is required under the Code — but if the average is less than 30 feet or more than the 50 feet, then the City is required to use those minimum or maximum distances.
The Code is very clear and was in place when the developer purchased the land in question. Hence, NDI was on notice of the City’s zoning requirements and knew (or should have known) that it couldn’t build a house within the number of feet equal to the average of the front yard depths of the adjacent properties from its front lot line (absent a variance). Landowners are always free to seek a variance from the BZA, as Mrs.Updike points out, if he/she/it believes that the Code creates an undue hardship.
Unfortunately, the City’s Zoning Administrator, John Boyle, appears to be applying the 30 feet minimum in ALL cases. His reasoning, available for all to read thanks to FOIA, is highly suspect. See the memo he sent the City’s Attorney after the City settled the Teetes v FCC case.
http://docs.google.com/leaf?id=0B1qFfaWjvWoUZmQ0YmYwYzMtMjM4Ni00NzAyLTk2MDEtYjYzMzViYTc4ZWVk&sort=name&layout=list&pid=0B1qFfaWjvWoUZGRlYmQyYTctYjM4NS00ZDIyLTg2MjUtOTQ5OGVlYzlkYjBh&cindex=5
I’ve also heard that Mr. Boyle is a self-proclaimed Libertarian. Those view are perfectly fine for him to hold in the context of his personal life. But it’s wholly inappropriate for an unelected City Official to insert his or her personal political views into a non-discretionary, mandatory process. Especially where there is no ambiguity in the Code he is required to follow.
It will be interesting to see whether the City Manager will require the City’s employees to follow the City Code and the Code of Virginia in a non-discriminatory matter and without regard to personal views.
Has anyone found a clear way to combat these issues? Code or not, right or wrong, there has been growing concern about the development encroachment and the city’s need for more revenue.
But for all the concern and comments, there has yet to be many positive or successful moves toward less development and keeping the Little City little.
There are formal ways of combating these concerns, suits or appeals, but these are either costly or ineffective. While the rewrite is a much needed process, this will and has taken a lot of time and there is not enough paid or volunteer manpower to move this through quickly. By the time it does go through, damage will be done and other critical actions will need to take place.
I have seen much development in the city in the last 14 years, some of it contested and usually the developers just wait it out and do what they want. Does anyone have a recommendation on how to say “let’s look at the bigger pictures” process; namely overdeveloped areas lower the value of our community. Case in point: Forest used to be considered one of the most beautiful streets in the area. Now with this development and the one across the street from it, the whole cherished community feel of the street has been destroyed. This can not be good for anyone’s property values.
Kathleen, I am not sure what you mean about moving towards less development… I think that our city council (past and present) wants more development –commercial — to shore up/diversify the tax base.
Are you talking about residential infill? One of the things that I am looking at (hopefully for another article) is the substandard lot issue within our zoning code. It may be that this is another area where the code has been interpreted too generously and/or an area where we should tighten up the code. We need to look at the rules for contiguous lots under common ownership (ie, an existing home on a parcel that is made up of two substandard lots – is ok for the lots to be separated and then developed? From my reading, our regulations appear to prohibit this, however, it has been happening all over the city.)
I also have been collecting information about what other jurisdictions do to regulate the “bulk” of new residential construction, substandard or otherwise (article three maybe?). We have setbacks to define a building envelope, plus height and area coverage restrictions. There are other tools out there, like Floor Area Ratios (FAR), though they may be difficult for our smaller city staff to administer…..
People can debate about infill housing — we are near metro and the city. From a bigger picture, someone can easily argue that infill can make sense. We need to figure out the best way for it to happen.
Sounds to me like the code rewrite should reflect community and neighborhood values and standards. It also needs to be applied consistently. I am quite sure that’s easier said than done.
Does anyone know the status of the proposed residential development on the corner of Park Avenue and N. Virginia Avenue? That is the lot across from the library, where there is a sign offering TWO lots for “green” houses.
I have not personally measured the lot, but just from eyeballing it, it appears that it would not be possible to build one house, let alone two, especially taking into consideration setbacks and lot lines. And as for “green”, most of those gorgeous mature trees would have to go. I’m no environmentalist, but that seems like a very un-green thing to do.
And what about parking? There is not enough parking for the library and the two adjacent office buildings in that area. Adding cars from home owners and their guests to that situation would be a disaster.
That lot is one of the only green spaces left on that side of Park Avenue. I often see children and families using that space for fresh air and recreation. It is also one of the best locations to watch the Memorial Day Parade.
Does anyone know what the current status is with that lot?
Your eyeballs deceive you. The land area in question is sufficient for two fully conforming residential lots, and that is what the owner plans to build. Nobody could come up with a public use other than parking, but leveling the trees for a parking lot is almost as terrible as having two new homes there. The library needs more parking and more space, but how much money are we willing to spend to accomplish these things, and are we willing to sacrifice this tiny piece of old growth forest for it?
Actually I did propose a plan, as follows:
(1) Buy the lot and design a children’s library which would keep all of the trees. The structure would sit in the air on steel piles driven carefully between the roots and would be a see-through glass building. This would free up space in the existing building. Cost: $5 million?
(2) Buy the land between the OHOP and Virginia Ave. and build a parking structure with about 300+ spaces. The shopping center would have more parking than they have now and the library and the park and City Hall and the other businesses would have a start on the parking needed to achieve higher density for redevelopment. Cost: $7-10 million. The higher figure would support developing the upper level as “festival” space which would be at about the same elevation as the Farmhouse and could be connected with pedestrian ramps or other features designed to tie the area together.
While some revenue could be generated directly with #2, for the most part the burden of financing these kind of amenities would fall on taxpayers, so a certain element of reality has to be included in the discussion. However, unless we make plans for what we want we most assuredly will never see anything resembling it, and unless at some point we are willing to put our money where are mouths (or plans) are we will just be debating whether somebody should build a couple of homes on property that could be a cornerstone of re-envisioning and rebuilding the real heart and center of our City.
@ Stewart Fried – I would place bets that the new code language is written so that all front yards are 30 feet, since the city is in charge of rewriting its own code. This seems to have been going on for a long time – the memo you refer was written three years ago. Was the City Manager aware of this problem back then and if so, why hasn’t he made his staff comply with their code and legal settlements?
Dan, I really like your glass library treehouse idea – but my guess is the price tag would be at least double your estimate (glass is expensive… and so are those two lots!).
So, why so few comments on the clear-cutting piece of the story? Seems the law on unintended consequences applies over and over again – the city tree staff demand such absurd actions under the auspices of “protection” that development efforts are steered toward clear-cutting and planting new landscaping afterward. Reference the Koch’s (author of the USAToday articles) quixotic effort to build “as green as possible” in FC:
“We got bogged down in endless bureaucratic details, many of them about protecting trees on our property. As someone building a green home, I’m sensitive to the issue. Really, I am. Still, I had more conversations with the city arborist than with the building official and city engineer combined. The arborist was the last city official to OK our building permit.”
Anyone less inclined toward environmental friendliness (and I suspect that would be pretty much everyone) simply gives up and hires the chain saw crew. Quite frankly, the public face of this department really needs to change . . . .
Rob,
An article focusing on tree protection is inbound. Please stay tuned.
Andy, thanks I am glad somebody is paying attention. The land can’t be worth more than about $1 million, and while the structure would be a little unusual it would not be more than 10,000 sf, so @$400/sf that would be $4M, but you could be right especially if my translucent photo-sensitive PV panels did not qualify for special financing or grants. Obviously an exotic modern structure next to one of our historic gems might be a little jarring, but the glass could be sort of wavy like colonial era plate glass. We do have money in the CIP for library expansion, and like I am suggesting if we do something unconventional we could attract additional funding. Expansion and modernization of the library is one of our critical priorities as a community, and I hate to see opportunities go by the wayside because of a lack of imagination. I know how constrained our current financial picture is, but if we do not make plans to express ourselves as a community then we will just be preserving an independent City that people can drive through without noticing and with no reason to come back.
For those who would like to read more about our attempt to get the city to follow the code as written and as intended in regards to averaging of yards see this google doc link for a file of documents: http://docs.google.com/#folders/folder.0.0B1qFfaWjvWoUZGRlYmQyYTctYjM4NS00ZDIyLTg2MjUtOTQ5OGVlYzlkYjBh
We found BZA minutes, PC minutes, and City Council minutes that clearly describe how averaging was applied up until Mr. Boyle replaced our previous ZA. The city refuses to follow the code, despite the clear intent in those minutes and a costly legal settlement. Later we went to court over the failure to follow the settlement to be told by the judge that it was not a “willful failure,” which is not true if you read Mr. Boyle’s 6/25/07 memo. Our judge had plans that day, which seemed to be more important than our case (see first few pages of court transcript).
The City Manager once asked me if I thought it was important that the ZA be consistent with his interpretations. I agreed that he should be consistent, but following the past five decades of averaging correctly seemed more consistent then having a new ZA change the “rules” based on a personal opinion.
Mr. Maller and AYOs (All You Others — with whom I am not familiar):
“The City has at turns ignored and neglected this provision and many others, which among other things has allowed people such as Dudley McDonald to walk away with mountains of cash – it must take a big telescope to see all of this from your glass house Dudley” Why the personal attack?? In my opinion, it is so Saul Alinsky-like and I doubt you are running for office again.
Mr. Maller, I really resent the statement you made about me and, indirectly, others who operate(d) within the Codes of the City of Falls Church and as ‘legal’ citizens &/or businesses who “take advantage” of an investment opportunity. What business is it of yours how large or small my “mountain of cash” is/was/or will be. Nor is it any business of yours how large or small any others’ “mountain of cash” is/was/or will be. Apparently, your personal envy has no bounds! BTW, I do not have need for a ‘big telescope’ since I frequent FC to visit family, friends and business clients. However, I do enjoy residing in central Virginia in a newer home with many windows through which I view our landscaped gardens filled with flowers, shrubs and trees we had moved from our former property in Falls Church. It is thanks in large part to a wonderful developer who subsequently built THREE beautiful houses on our former buildable lots next to that other beautiful house. I do believe all that “legal/permissable” development has expanded the tax rolls of the Little City by millions of dollars of value over the years of change in Falls Church City. I’ll assume you can see each of the houses from either your front stoop or upper-level windows!
AYOs, how many of you have taken the time to schedule a face-to-face meeting with Mr. John Boyle or other members of the professional staffs in the City government? I’ve known Mr. Boyle for years and have found him to be a very competent and fair professional who takes his position as a zoning administrator very seriously and sensibly.
Regarding Mr. Stewart Fried’s commentary about Mr. Boyle being a “self proclaimed Libertarian”, I wonder who ‘told him that’. Mr. A Nonnie Moose??
Why not ask him directly via a meeting or a telephone call. Besides, what “personal Libertarian” would perform his ‘official’ duties to prevent a “Strip Club” from happening in the City or lead an ordered dismantling of an “Addition to a house” that was not in compliance with the code?? Destructive personal-attack and “inuendo” politics is not necessary in the Little City of Falls Church. Leave that to the professional pols in D.C.!!!
(FYI, a about five years ago, there was a failed effort to re-write a very specific portion of the City Code regarding the use of “substandard” lots. We owned three of those lots (which had been created in 1903 by Fairfax County and long before the City became a legal jurisdiction and its ‘zoning ordinances’ took effect). Our legal “Property rights” efforts prevailed to the ‘cheers’ of many citizens and the ‘jeers’ others. “Legal precedance” and “Grandfathering” and common sense still work well in the Commonwealth.)
Hmm, interesting conversation we have going on here. I’m slowly starting to learn more about all the various parties in what I call “the big substandard lot issue” – something I’ve been curious about since I moved into the City over two years ago.
From my perspective one thing seems clear: the rules (zoning code or whatever) are not written well enough to make it clear what is allowable and what isn’t. Either that or someone (Mr. Boyle and his manager(s), I guess) isn’t doing their job correctly. I know we’re working on a zoning code update – if that update doesn’t “fix” this problem (by making the rules clear to everyone) it will be a big disappointment.
I will say that while Mr. McDonald is right that these developments have added value to the City over the years it seems pretty clear that they have a net negative financial impact – they have added more expense than value.
I was there when Mr. McDonald and Mr. Shefer were at a zoning (ZORS) meeting regarding substandard lots. The two of them were nearly blowing their gaskets about the idea that the city would clarify the code regarding substandard lots. I remember them saying how they had no intention of tearing down their houses, since they were longstanding homes of their families, and splitting off their lots, but they wanted to preserve the right. Only a few years later, and McDonald’s out, his house is gone, and three houses are sitting on three substandard lots, previously legally combined by the code. Mr. Shefer’s properties are up for auction with an uncertain future. Mr. Shefer also took the city to court to eliminate a height reduction requirement for substandard lots, rather obviously because he intended to split his substandard lots.
When a house sits across two or more substandard lots owned by one entity, the code says they are legally combined. They are illegally re-split when the lots (somehow each with a portion of the house) is sold to separate entities (in name only), and then they are redeveloped.
The intention of the city forefathers in putting in place code language relating to legally combined substandard lots was to make sure that those lots remained combined, and thus standard sized. However it was recognized at the time that there were some stand alone substandard lots that were given grandfathered status to remain viable.
The use of dummy companies to purchase each lot “separately” is a recent work around the intention of the code and has occurred several times in the last five years.
Mr. Theisz:
Some of your factual statements are accurate; some are not. At the time we argued against the ‘combining of the contiguous lots’ it was in the proposal stage. We employed a well-regarded land use attorney to convince the “powers that were” that the then-current law was in our favor. I don’t recall ‘blowing my gasket’ other than citing well-documented history regarding property rights of the individual and the significance of historical fact regarding the sub-division of what is commonly referenced as Ellison Heights before the City of Falls Church existed.
It wasn’t a “few years later” that our property sold and we moved away from the City. A few months is more accurate. AND you are correct, we had no intention of tearing down the house. As a matter of fact, it was the same Mr. Boyle (often mentioned in this line of commentaries) who tried to figure out a new ‘sub-division’ strategy for the lots in an attempt to enable us save the existing house and maximize the value of the entire property. Factually, there was more interest in ‘the land’ than the lovely 70 year old house that had been in my wife’s family since it was constructed. THE LOTS WERE NEVER LEGALLY COMBINED as you so state. The City ALWAYS sent me a property tax bill for EACH of the LOTS separately.
Regarding these statements of yours:
“When a house sits across two or more substandard lots owned by one entity, the code says they are legally combined. They are illegally re-split when the lots (somehow each with a portion of the house) is sold to separate entities (in name only), and then they are redeveloped.
The intention of the city forefathers in putting in place code language relating to legally combined substandard lots was to make sure that those lots remained combined, and thus standard sized. However it was recognized at the time that there were some stand alone substandard lots that were given grandfathered status to remain viable.
The use of dummy companies to purchase each lot “separately” is a recent work around the intention of the code and has occurred several times in the last five years.”
I believe the State Supreme Court affirmed the concept of “individual property rights” and that “corporations” are “individuals” in the eyes of the law. In essence, the government cannot compel individuals to ‘combine their properties’ if they pre-date zoning codes. Nothing illegal took place. You might ask Mr. Maller about this issue and specifically what the court had to say since it was his lawsuit that failed.
Regarding the late Anton Shefer (Sheaffer?) and his properties: They may well be up for auction based upon the estate situation. I came to know him during the time period. As I recall, his position was that of an individual property owner (many properties in his case) who did not want some unwarranted local legislative actions (height limits) to diminish the value of his properties. His efforts also stopped at the State Supreme Court and also in ‘failure’.
What has never been sufficiently codified is the definition of “substandard lots”. Is it square footage? Lot dimensions i.e. width/depth? I do believe that there are many, many individually and corporately owned ‘substandard lots’ in the city and
few are identical in square footage and/or shape! For the sake of the residents of the Little City, I hope the efforts to re-write the code are successful enough to placate all those who still want to practice “NIMBY-itis” in such a small, “politically land-locked” geographic area in Northern Virginia.
(FWIW, life in a homeowner association neighborhood has its own set of problems regarding ‘individual property rights” and those ‘infected with NIMBY-itis” i.e. what is the deifinition of an exposed brick foundation???)
Interesting about the Virginia Supreme Court. The City has had about ten zoning or subdivision cases in the past several years, and in every case the result was that the City would be allowed to do what it chose to do. I appeared as counsel on two of those cases, one on the losing side and one on the winning side. In several of these cases, I believe the result was inconsistent with the intention of the ordinance, but overall it certainly provides clear guidance to us that we need to mind our own affairs and not rely on the Courts to do what we are unable to do for ourselves.
In addition to the general background, there is alot more to be said about the McDonald property, and the greater part of it is the tremendously positive contributions made over several lifetimes by Dudley and his forbears. However, a regulatory framework that would allow three homes to be constructed there at the end of the story is not deserving of being called zoning, and is entirely inconsistent with any rational reading of the 1959 ordinance.
I will write more another time about the specific history of residential zoning in Falls Church, but the short story is that in 1934 the Town adopted a zoning ordinance that said if you developed more than one lot together they were combined, and in 1944 the Town said the minimum width of a lot was 50 feet (75′ in R-1A). Between 1944 and 1959 many parts of the City were developed, and many properties were resubdivided into conforming lots (The Ellison Heights subdivision at the western end of the City consists of hundreds of 40′ lots created in 1906, the vast majority of them being identical 40 x 150 foot parcels). Seven of these lots on Pine Street were changed into four 70 x 150 foot lots in the 1950s, and likewise five lots on Walnut were changed into three 66-67 x 150 foot lots. In 1959, the width requirement for R-1B was increased to 60 feet, with a “grandfather” clause that any lot existing in 1944 could be used “if it could not reasonably be combined with other property to meet the minimum size requirements.” Until 2003, nothing much changed, but then a combination of opportunism and neglect allowed a chain of events to escalate into what we have now, which is a real threat to the fiscal viability of the City. I regret that the Zoning rewrite is taking so long, and that it is necessary at all in this respect, but I am hopeful that this process will result in a code that clearly implements the policies that most of the community believe in.
@ Mr. McDonald:
As far as blowing gaskets, I can only say that you and Mr. Shefer were quite loud in your objections and both were beet red in the face. I’ll give you one thing – you successfully scared the ZORS, the City Attorney, and the City Council into backing off of the clarifying legislation.
As to your quest for a substandard lot definition, you only need to read the code:
Chapter 48 1102-b-1
Substandard Lots.
Any lot of official record as of February 14, 1944, or any lot of a subdivision approved by the city from February 14, 1944, to the effective date of the ordinance from which this division is derived, which does not meet the lot size requirements for the district in which it is located, may be used for a one-family dwelling, provided:
a.
It is in an R district; and
b.
It cannot reasonably be combined with other property to meet the minimum size requirements.
Since your lots existed prior to 1944, and did not meet the size requirements for R1B (minimum lot lines/square footage), they were substandard by definition, and subject to this code. You owned them, contiguously, with a house strattling at least two, and thus they could be and were reasonably combined. That would be how I would define legally combined by the code.
I am sorry if my timing was off on the sale of your house. Things sure went by in a hurry. Your quick sale of your lovely 70 year old home and property to be redeveloped into three large houses demonstrates Maller’s point – this was a money making effort at least for the future developers, and the city is left to provide services to three families where there was once only one. This is the residential infill that Mr. Chavern has been discussing on another threat. Overall, this was a loss to the City.
Back @ Mr. Theisz (and Mr. Maller):
Given your professional background, you know that the human body has no “gaskets” to blow (just passionate expression which I freely admit to using at times when I know I am correct in my position.)
I didn’t scare off the city “powers that were” — the law did. Right, Mr. Maller? I was on the right side of the law in my dealings with the City at the time (and still would be today!) since, to my “distant” knowledge, the Code hasn’t been changed. As Falls Church’s “Favorite Political Choice in 2008′ successfully campaigned, “Hope and Change” is on the way regarding the City zoning issues in the minds of some, but not all!. Another “hired consultant” will have to take “all the arrows” again?? All those “extra costs” cause higher taxes, too! Extra property taxes help spread that burden, too.
You claim the City now has the extra burden of providing services to three families now.( I hope the new families do not believe they are an extra burden to the welcoming Little City!) Does the city collect more taxes than I ever paid to help defray those costs?? Did the City collect other “developer fees” in the process? Do you feel the same way about every new “family with children” (such as yours) who moves into the city, perhaps occupying a house previously occupied by a former individual/couple whose children have “flown the coop”? Are there not additional burdens on the City in those situations??? During the mid-1970s, the school system was ‘begging’ for more children to avoid a minor movement to combine the City Schools with either Fairfax County or Arlington County. Some issues never go away!!
Regarding all those “40 foot” lots of Ellison Heights created by Fairfax County in 1906 (I recalled it being 1903) that were “grandfathered”: Mr. Maller: J. Morton and Jeanne Franklin (my wife’s grandparents) ‘originally owned’ five lots fronting on to Sycamore Street and five lots directly behind them fronting on Walnut Street. I believe they were sold to a ‘developer’ who subsequently and VOLUNTARILY combined them into three building lots upon which houses now sit. I do not believe the city forced the combining of the lots.
My question still remains, what is so wrong with someone making a “profit ” from buying/developing/selling real estate? “Reasonable” for some is “unreasonable” for others? Or is it that “mountain of cash” in the end that some find so offensive until their own house is being purchased or sold? Or is it simply the abusive exercise of power?
Always remember that the City of Falls Church chose to be a “Little City”. Subsequently, it has to manage the issues facing change while trying to please all of the people all of the time. Hint” “IT Ain’t never gonna happen”! (Utopia exists only in theory or in the book “Utopia” written by Sir Thomas More written in 1516 AD.)
Best of Luck with the Little City! As attorney John Foote suggested to the “powers that were” a few years ago. “You won’t recognize this place in 50 years!”
re substandard lots — I find all the discussion of whether or not Mr McDonald’s lots were “legally” and/or “voluntarily” combined into a larger lot actually not that relevant to the intent of that section of the zoning ordinance — which says you can develop a substandard lot if it “cannot be reasonably combined with other property” to meet minimum size requirements. It shouldn’t matter if the lots were separate lots of record from 1906 (if they weren’t separate lots of record, then we wouldn’t even be having this discussion) or even if the owner paid property taxes for each of them separately. What should matter is if the owner has enough physical, contiguous property to meet the current zoning requirements for minimum lot size.
If the criteria to develop a substandard lot is simply that it exists as a (substandard) lot of record, then we are allowing our zoning to be superseded by earlier zoning code lot requirements and even earlier turn-of-the century subdivisions rather than using this part of the code to preserve development rights for the few people who truly are unable to meet the current zoning code requirements because they only own a single nonconforming parcel.
@ Suzanne – exactly.
I have strong feelings about protecting the rights of property owners – specifically for the purpose of maximizing the value of their property. I don’t begrudge Mr. McDonald, or anyone else (developers included), from getting the biggest pile fo money they can get for their property.
On the other hand, communities have established rules (zoning) for what can be built in different places. It seems like these rules are like any other rules established by governments – at the time they’re established not everyone agrees with them. There’s a process in place that dictates how the rules are established and then we all have to live by those rules (until they are changed, following whatever process exists at the time).
It sounds like a long time ago there were different rules about how big a lot needed to be in order to build on it. Then the community got together and decided they wanted to change those rules. No doubt, at the time some of the property owners objected to these changes in rules because they would have a negative impact on the value of their property. So compromises were made – to allow existing land owners to maintain some value but also allow the community to move towards the new standards that they wanted.
From what I can tell the compromise back then was that if a landowner could reasonable combine multiple “substandard” lots into a “standard” lot then that’s would be required. I can see that now (probably like back then) some people don’t agree with that rule – but one way or another the people of that time made it a rule. It seems to me that building a conforming house across two “substandard” lots is a pretty obvious sign that the lots could reasonably be combined in order to form a “standard” lot. So, when the property owner built that house I think they gave up their right to later develop the “substandard” lots. Maybe they didn’t realize it at the time? That would be unfortunate for the landowner but the rules are the rules.
I don’t know the details of the various legal cases or why they turned out they way they did – but based on what people have said here (even what Mr. McDonald has said) it seems to me that the intention of the rules that were established has not been followed. Hopefully the updates to the zoning rules will fix the problem – or, I suppose, the existing process could lead to changes that would make it more clearly allowable for this practice to continue. However the rules are changed I hope they’re clear enough that they can be applied without so much confusion and debate.
Andy, I think that is pretty much right, although it shouldn’t matter if an owner of multiple contiguous substandard lots build a house on them or if they are undeveloped — if the owner owns enough contiguous property to meet current lot requirements, then he/she should comply with current standards.
Language for substandard lots are in zoning ordinances to prevent a regulatory “taking” (denying a property owner any development rights) should a person not have enough land to comply with current standards. Lots of ordinances have a date in this section — “if you owned enough land at the time this ordinance was passed, you must meet current lot size, etc”)
Ms Updike:
The “law” is not “one’s opinion”. Stop analyzing the intracies/variances within the Code and, as a citizen of the Little City, work to get it changed. Just don’t try to trample the rights of your fellow citizens.
Until and if the Code gets changed, simply live with it. Do not be critical of those who do their level best to enforce the Code as it is for the time being.
And please, encourage others to stop chiding those who take full advantage of their property rights. One day it may be you.
Best of luck!
Mr M –
Clearly we have different opinions as to whether or not the Zoning Administrator IS enforcing the existing code.
I could not agree more that the law should not be a question of one man’s opinion. This is why so many of us are frustrated: when the one man is a government employee who elects to change decades of settled practice we should rightly object.
I filed an appeal to the BZA of the actions and inactions of the City with respect to the demolition of the McDonald home and construction of three in its place. The same one man also decided to usurp the role and function of the BZA and to refuse to process the appeal. Franz Kafka would be proud. I decided since I was on the City Council and involved deeply in several other pending actions that I would seek to clarify the rules concerning the obligation of the ZA to follow the code that says appeals should be processed, and the BZA did change the rule to leave no room for “interpretation.”
Dudley McDonald did nothing but accept the fruits of the erroneous course followed by the City. As the neighbors on Forest Drive and many other parts of the City will testify to, it is not the developer’s money he walked away with, it was a little bit of the value of our neighborhoods and a little additional burden, which will be borne by all of the taxpayers until we care enough to put a stop to it. The right of every resident to expect our laws to be enforced it just as important as the right of a single landowner to extract the last dollar when he chooses to cash out.
@Maller
There is an inconsistency between the requirements of the Code of Virginia and the City Code regarding service of a BZA appeal. The statute (which trumps the code) requires appellants to serve the Zoning Administrator AND the Board of Zoning Appeals. The applicable City Code section (48-173(a)) only requires service on the ZA and the requires the ZA to serve the BZA.
This procedural issue should be addressed in the re-drafting currently ongoing. The ZA should also be required to issue a stop-work order and advise the permittee and all other interested parties that a stay is in place, absent a certification by the ZA under subsection (b).
Although what you encountered appears to have been addressed and will hopefully never occur again, what is clear is that the Code needs to be as unambigious as possible to give clear and advance notice to all parties of what their property rights — as landowners and as neighbors — are under the Code. Failure to faithfully follow the Code will diminish our property values or worse — we could end up like Houston where there are no zoning ordinances at all.
Mr. Maller:
Stop beating a dead horse. Your efforts failed in the courts. Since you were on the City Council at the time, obviously you were unable to persuade the majority to change the Code.
Are you angry with all your former neighbors who took maximum money from the settlement table too? Did you express displeasure at them as well, especially those who supported my position. I surely hope not.
Move on and follow those who are trying attempting to change the EXISTING CODES.
@Fried: the FCCC clearly says the appeal is filed with the “ZA and the Secretary of the Board,” which I think is consistent. Also the next sentence of the code says the appeal “stays all compliance with the action being appealed unless the zoning administrator certifies to the board that by reason of stated facts a stay would, in his opinion, cause imminent peril to life or property.” Unfortunately, this provision has been universally ignored by staff.
@McDonald: sorry the horse lives on. The City Council did unanimously enact a provision in 2006 (which I wrote) which the VA Supreme Court upheld as a valid exercise of the police power to regulate substandard lots in a very important decision that clears the way for whatever regulation may come of our zoning rewrite. That rewrite is nearly completed and I am honored to have “followed” it through about fifty meetings of the Zoning Ordinance Advisory Committee.
There are really only three families that have taken advantage of this lapse of administration by the City. One was a result of the death of a family matriarch and one a divorce, so I guess you are the only one who has no “mitigating factors” and has chosen to speak out as representative of the “class.” I am not counting Mr. Schefer, with whom I had several lively discussions but whose “settlement table” has moved to a venue in which I am not licensed to practice. One additional family was stopped by my actions including convincing the City to enforce its codes, which was also upheld by the Courts, and many others across the City have and will continue to encourage the enforcement of our codes by all available means and to continue the process of writing a code that will not allow one property owner to loot and pillage in the name of “property rights.”
Dan, you mention a provision that “has been universally ignored by staff” and it has me wondering what the solution to a problem like that is. I assume that along the way the City Manager is responsible for making sure the staff is doing their job properly and I know the City Manager is hired/fired by the City Council. Does the City Council have opportunities to give the City Manager feedback/guidance that’s outside of regular meetings? How does that work?
Maybe you raised it when on Council but not enough people agreed with your assessment to give the City Manager guidance on the matter?
My reference was to the obscure language about “staying” an action relating to a BZA appeal, and I am not aware of this being followed, ever. The BZA is a quasi-judicial body which has sole responsibility and authority over the actions and inactions of the ZA, who really does not report to the CM in any substantive way. The CM’s job requires a very deliberate balancing between the various interests of the seven members of Council, and I decided early on that I could not afford to make my entire term on council all about zoning.
I have no complaint whatsoever about the attentiveness of the CM, the City Attorney or the Clerk to my personal agenda while on Council. In retrospect and given the amount of time I had I did the best I could to advance the ball in several of the areas I feel were important. This story is about zoning, though, and while we were worrying about all of the other business I do wish we had devoted more time to moving the zoning ball forward, but I also have to point out that staff and all of the other members I worked with were supportive of my initiatives and willing to allow this very complex and sometimes emotional issue to move forward. That is the messy but necessary thing we call democracy. I do not like some of the outcomes nor the speed of the progress but I can’t complain about the political or judicial process and all of the ways I have been allowed to participate. I will certainly continue to try to bring all of the relevant information to light and to argue for what I think is in the best interest of the City, so everybody can make up their own minds.
Dan, the City did “stay” the construction of the home which was on the Ridge Place appeal – they stayed the very front of the garage. The actual appeal involved 12 feet of the front setback (cutting well into the entire front of the house – see the google docs link referenced above by Melissa Teates). The “stay” was only placed after I complained to the City about the continued construction. The code language reads that an appeal requires a stay of the construction unless there is a safety issue (see actual language immediately below – applicable sentence separated for emphasis).
b) Appeals. An appeal to the board may be taken by any person aggrieved,
or by any officer, department, board, commission or agency affected by any decision of the zoning administrator relative to the administration of this chapter. An appeal shall be taken within such reasonable time as shall be prescribed by the board by general rule, by filing with the zoning administrator and with the secretary of the board a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the records upon which the appeal action is based.
An appeal stays all compliance with the action being appealed, unless the zoning administrator certifies to the board that by reason of stated facts a stay would, in his opinion, cause imminent peril to life or property.
In such case, compliance shall not be stayed other than by a restraining order which may be granted by the board or by a court of record, on application and on notice to the zoning administrator and on due cause shown.