Zoning Controversies Dominate City Council Session

Falls Church Times Staff

March 2, 2011

The Falls Church City Council will not begin to review the report of the Zoning Ordinance Advisory Committee (ZOAC) until March 7th, but residents were out in force Monday evening to comment on the report’s recommendations.  City zoning administrator John Boyle also came under fire from many ZOAC supporters. 

Art McArthur, representing 70 petitioners, led off by stating that six of the ZOAC’s nine residential recommendations restrict, reduce, or eliminate some existing property rights.  He said that the Committee now was against releasing the contractor’s revision of the City’s zoning code, a project he maintained had cost $500,000.

Calling the ZOAC report slanted and disingenuous, Mr. McArthur said that 20% of the document was devoted to the issue of substandard lots (one less than 60 feet wide or created after a larger lot was divided into two separate parcels).  He concluded by pointing out that two members of the Council live on such lots and that one of them would not have been able to improve their property several years ago if two of the ZOAC’s recommendations had been law.

Several residents seconded Mr. McArthur.  David McGuire, who had bought property with the intention of developing it, said the issue was not one of lost opportunity if the recommendations are implemented, but real money.  

Charlie Albright said most of the ZOAC changes and the enforcement of front yard averaging will lower the value of properties and the tax base.  Diane Edwards, a substandard lot owner and realtor, agreed.  She said all 984 substandard lots in Falls Church will have their taxes reduced if the ZOAC’s recommendations are approved, resulting in a loss of income to the City. 

Anne Durgan said that the new homes built by incoming residents on her street had helped strengthen, not weaken, the neighborhood’s sense of community.   

Other residents, including some substandard lot owners, defended the Committee.  Many sharply criticized rulings made by Mr. Boyle, which they believed ignored the current code.     

“The ZOAC is not trying to change anything,” said Richard Knodt.  “They’re just trying to preserve what exists.  We have deviated from the law as is written.  To take the lawless decisions made by the zoning administrator and make that the law would be a grave error.”  His wife Jane spoke against building substandard lots out to a maximum and for maintaining the existing codes for averaging front yard setbacks.

David Gogal said that recent decisions had made the zoning ordinance meaningless.  “I don’t think you need to have these fairly large detached, almost town homes to create a new community” he said.  “Older homes don’t have to be torn down and replaced with two.”

Dr. Goron Thiesz echoed Mr. Gogal’s criticism.  “Zoning law requires averaging of front yards.  That the zoning administrator offers a plan without averaging shows his continued disregard of this provision of the law,” he said.  “The zoning department needs to follow the law as written.”  Dr. Thiesz also accused the administrator of issuing a recent ruling on a lot coverage violation six years after construction as “retribution, not enforcement.”

Former Councilman Dan Maller said that property rights had been diminished by the zoning decisions.  “The focus of the ZOAC report was to take a stand to protect the neighborhoods of Falls Church,” he said.  “Zoning is a process where the City decides, not an individual property owner.  The City decides what the rules are and we would like those rules enforced.” 

Keith Thurston, a former planning commissioner, said that the zoning code was being totally misinterpreted.  “If you have a zoning administrator who changes their opinion and enforces it differently, you essentially have no code,” he said.  Mr. Thurston attributed the problem partly to the fact that Falls Church’s property records go to Arlington County for recordation and through “coaching” owners or developers are being told how to change the deed, allowing them to say they are two separate property owners.  

Mayor Nader Baroukh thanked the speakers but stressed that the objective of the March 7th work session would be to define the next steps in the process, rather than an opportunity for the Council to begin discussion of the ZOAC  recommendations.  The mayor referred two of the zoning complaints to the city manager and city attorney for review.

City Manager’s Report  –  Wyatt Shields noted that Jim Snyder, the new planning director, is now on board.   He served many years in Arlington County, dealing with both current and long range planning, and later in the private sector.   Mr. Shields thanked Assistant City Manager Cindy Mester for her service in the interim prior to Mr. Snyder’s appointment.

During the comments segment Mr. Shields mentioned that the Easter Seal’s lease on the Child Development Center building on Cherry Street is expiring later this year.  City schools may be interested in obtaining the building after November. 

Sewer Rates Rising  –  The Council approved second reading of an ordinance raising sewer rates (6-0, Ms. Gardner absent), the first increase since 2005.  The increase is necessary primarily to meet the capital costs of treatment upgrades required to protect Chesapeake Bay.  The current commodity charge for sanitary sewer is $5.91 per 1,000 gallons.  The charge now will rise to $7.25.  A quarterly fixed charge of $5.00 also will be instituted.

“No one likes raising costs but we can’t allow infrastructure to degrade,” observed Vice Mayor Dave Snyder.  “It’s the responsible thing to do.” 

Naming Ordinance  –  With Mr. Kaylin abstaining, the Council approved the first reading of a measure that would strike a 1990 ordinance that mandated buildings, parks, or other properties owned or controlled by Falls Church could not be named after any living person. The new ordinance would not apply to school facilities.

Mr. Kaylin explained that he had no intention of depriving anyone of the honor. He said he was simply suggesting that it would be good practice to impose a waiting period of two or three years after a person was no longer working for the city.

Regional Surface Transportation Program (RSTP)  –  The Council approved a resolution endorsing the City’s application for an RSTP project for FYs 2013-17 to construct additional pedestrian and bicycle improvements.  Approximately $300,000 per year is anticipated to be allocated to the City during that period.  The City was awarded the same amount in FY 2012 for implementation of pedestrian, bicycle and traffic calming improvements. 

The FY 2013-17 request is for additional funds for this project.  They will enable the City to continue to implement transportation improvements as outlined in its Pedestrian, Bicycle and Traffic Calming Strategic Implementation Plan.

FY 2011 Budget Amendment  –  The Council approved second reading of an ordinance authorizing a $125,000 increase to the water fund’s expenditure budget to cover legal fees and $50,000 to general fund expenditures to purchase a vehicle for the fire marshal. 

Appointments  –  Laurence J. Dorr and William Henneberg were reappointed to the Tree Commission.  Their new terms will run from April 1 to March 31, 2014.  

Peter Adriance was reappointed to the Environmental Services Council.  His term will run from March 1 to April 28, 2014.  

M.T. Gutmanis was reappointed to the Housing Commission to term from January 1 to December 31, 2013.  

Rena Marsh was appointed to the Falls Church Cable Access Advisory Board.  Her term will run from November 1, 2010 to October 31, 2013.   

Closed Session  –  After the public meeting adjourned the Council conducted a closed session concerning a legal matter.

Video  –  A recording of the public session is available at the city website.

March 2, 2011 


18 Responses to “Zoning Controversies Dominate City Council Session”

  1. Suzanne Updike on March 2nd, 2011 9:14 am

    To explain the issue of substandard lots:

    Zoning codes traditionally provide a minimum lot size for each residential district. When landowner within a particular district subdivides land into building lots, the lots must meet the minimum lot size. Sometimes a city will have small lots that were created before the zoning ordinance was written or perhaps a city will change its zoning requirements to increase lot size. When this happens, the zoning code usually makes provisions for existing single nonconforming lots so that the landowner can still develop the property (because to leave a property owner with no use of his/her land is a regulatory “taking”).

    Our code says you can develop a substandard lot if it “cannot be reasonably combined with other property to meet minimum size requirements.” So, if the owner of a substandard lot also owns adjacent land that could be combined with this lot to make a legally-sized lot, the owner needs to do so in order to develop this land.

    Many parcels in our city are made up of more than one substandard lot, usually with a house straddling two lots. In recent years, people have started separating previously-combined substandard lots (creating LLCs to show two different owners on deeds) in order to develop them. According to many, this conflicts with the code (difficult to say that they cannot be combined since they were combined) and was not allowed for many years.

    The ZOAC recommends that the City clarify the code to make it clear that separating previously combined substandard lots is not allowed. The McArthurs and others do not want that language added.

    According to their 2007 Diagnosis report (available on the City website), this is what the Clarion consultants suggested that the city should consider adding to code: “A new provision requiring lot consolidation of all adjacent lots under common ownership prior to issuance of a building permit for demolition of all or a portion of an existing dwelling that straddles two or more platted lots”

  2. Dudley McDonald Mechanicsville, VA on March 2nd, 2011 11:01 am

    As a beneficiary of the concept of “grandfathered property rights’, I maintain the City cannot ‘force’ a property owner to do something (combining lots/properties) against his right not to do so. The previously platted property area most in question is the Ellison Hts. subdivision which was created long before the City was even a political creation. There were some ‘voluntary’ property/lots re-divided in the area, but not all. The legally subdivided ‘standard lots’ were only 40′ wide — wide enough on which to build houses. One may not like the style of house, but that is not reason enough to force the property owner to forfeit his/her ownership rights. The Virginia State Supreme court even told the City that a few years ago! But the SCt also told the City the height restrictions were OK!

  3. TFC on March 2nd, 2011 11:06 am

    Sounds like it will be hard to apply new regs retroactively to substandard lots that have already been titled with separate owners. The very least we should get is agreement on how to proceed in the future.
    Does anyone know if there have been issues about ZA approvals for substandard lots that are not in keeping with current regs? I know there have been issues with the averaging requirement being ignored.

  4. Dan Maller, City of Falls Church on March 2nd, 2011 11:51 am

    TFC, isn’t it more logical to say that it is the action of a current owner to split the lots that retroactively seeks to uncombine lots that were combined by the owner when a home was built (mostly in the 1950s)?

    Since Dudley chimed in, it is very instructive to look at the actions of the Grandfather in question, who I believe was Mrs. McDonald’s grandfather. The family owned the ten lots between Sycamore Street and Walnut Street and constructed a home more or less in the middle of three lots on Sycamore. The five lots on Walnut were re-subdivided into three “standard” lots (66-67-66 feet) and those were developed. While Mr. and Mrs. McDonald lived in the family home, in 1995, they developed the two remaining lots on Sycamore, building a home straddling the line and set far back from the street to protect a boxwood garden planted by Grandpa. Grandpa was apparently a horticulturalist for the USDA and also had planted what became a towering stand of trees on the three remaining lots. The McDonalds then sold the property to a developer, who filed for a permit to demolish the home and to build three in its place. In a matter of hours, all of the trees came down. Under the code, there is no question that they had the right to build two homes, so the difference legally is the one extra house. Would the McDonald’s land have had a lower value if we enforced our zoning code? Would the value of the surrounding properties have been higher? If McDonald benefited by $50k or even $100k, please anybody go look at the result and say whether the surrounding properties just subsidized McDonald’s well-deserved retirement by contributing a piece of their own value, privacy and enjoyment of their property.

    Incidentally, I did file with several other citizens an appeal to the BZA of the development in question, but the ZA on his own authority [illegally] refused to process the appeal. I elected not to appeal to Court because of demands on my time, and settled for a BZA rule change directing the ZA to process all appeals, since only the BZA has the authority to decide appeals.

    I do have a case pending in Arlington against the McArthur’s proposed development, where the BZA considered this issue for the first time and ruled 2-1 in my favor, but an appeal was necessary since it takes three votes to overturn the ZA.

    In 2007, the ZA approved a home on a substandard lot that was determined by the Arlington Circuit to have been illegally subdivided, in an opinion dated March 4, 2008, which the Virginia Supreme Court declined to review.

  5. Robert Thomas, Falls Church on March 2nd, 2011 4:51 pm

    I just don’t understand how two houses can appear where one once stood if the code says, as Suzanne reported, that the lots are combined. How can the lots get separate deeds while a house is sitting on the land? Does each LLC own half of the house? How can the City issue demolition permits if someone owns only half a house? How can the City issue building permits if the lots were already combined by the presence of the house? Am I wrong or is there circular logic here?

  6. TFC on March 2nd, 2011 4:58 pm

    Dan, wish I could say if your first para was a logical restatement of the issue or not. Smoke is pouring out my ears.
    Sounds like the pros and cons are divided in two camps depending on whether the party has substandard lots or not.
    I just hope that whatever the endpoint…it’s enforced correctly and consistently.

  7. Dan Maller, City of Falls Church on March 2nd, 2011 7:08 pm

    Robert, the (1959) code says a pre-existing lot can be used “if it can not reasonably be combined with other property to meet the minimum size requirements.” Most of these lots were used in pairs, and almost everybody who has looked at this thinks there really is nothing for the ZA to decide when faced with this, but for some reason he came up with the notion that if the lots are not owned by the same legal entity or individual, it is not “reasonable” to consider them combined any longer, even though there is a home straddling the lot line. This is actually an issue of “corporate” law, which is the reason I am challenging this “interpretation.”

    TFC, actually several of the citizens who spoke last night in favor of stopping the subversion, including me, are substandard lot owners. The zoning code is supposed to implement the Comprehensive Plan, and there is no question but that this violates the Comp Plan as well as both the spirit and intent of the Zoning Ordinance.

  8. Suzanne Updike on March 2nd, 2011 7:57 pm

    Robert Thomas’s questions are good ones– can someone explain how can you get separate LLC listed as owners for the lots if you have a house still sitting on them, and maybe even a single mortgage?

    At Monday’s meeting, two gentlemen who used to be involved with the BZA and Planning Comm both said that this section of the code used to be enforced, that the City did not permit separating previously-combined substandard lots in the past. If that is true, at which part of the process have things changed?

    Folks go Arlington to record the LLCs first? Demolition and/or building permits come next?

  9. Dan Maller, City of Falls Church on March 2nd, 2011 8:42 pm

    Anybody can form an LLC, corporation, limited partnership, etc. for any reason, the charters are granted by the State Corporation Commission in Richmond. Anybody can sign a deed at any time for any reason, and file it in the land records. Whether these things have any legal affect is the question before the Court.

    According to Mr. Boyle, he does not know and does not check the ownership of property, so people just come in and request permits and they are granted. In the case of the McArthurs, the plan was approved on July 7, I filed an appeal on July 30, and they created an LLC and recorded a deed for one of the two lots on September 9, over two months after the City’s approval of the plan and one week before the BZA was to hear the appeal. I have the same question as Mr. Thomas: how can this be allowed?

  10. Dudley McDonald Mechanicsville, VA on March 3rd, 2011 9:45 am

    TFC, Mr. Maller is “partially” correct but plays loose with some of the facts with the situation as it pertains to the property we once owned.

    The legal issue of “grandfathering” has/had NOTHING to due with the fact that Mr. and Mrs. Franklin were my wife’s grandparents. It is a function of the law and Mr. Maller did not distinquish between the two uses of the word.

    Additionally, we owned five lots on Sycamore Street, not three. We DELIBERATELY did not build two houses on two of the lots in 1995, when, in fact, the City zoning official encouraged us to do so. It did in fact cost us and the City additional revenue.

    As for three beautiful new houses on the three legally developed lots we sold rather than just two, the City collects more taxes each year from them. (I’ll assume that more money for the City government coffers is better given the financial stresses it experiences today.)

    Regarding the issue of tall trees being cut down. Trees are a renewable resource. It is my understanding that one of the trees was used for lumber and now is a beautlful redwood deck somewhere in NoVa. As I recall, Mr.Maller had a tall tree cut down on his property to make way for a beautiful addition to his ‘valuable house on Walnut street. (As a matter of fact, I helped him dispose of some of the wood by converting it into split pieces which I burned in my fireplace. That same tree was possibly planted by Mr. Franklin, too, since the land was once a nearly barren pasture and he planted many seedlings as gifts to his new neighbors. I have old photos to prove that point.)

    I am not retired nor do I have plans to do so anytime soon. I subscribe to the theory of ‘it’s better to wear out than rust out”

    Regarding the efforts of some citizens of Falls Church to make changes to the zoning ordinances, I urge them to be realistic in their thinking about the future of the City in that change will happen and that Falls Church will be very different 50, 75, 100 years from now as it was 50, 75, 100 years ago regarding the area of land and its uses. Change is inevitable.

  11. Suzanne Updike on March 3rd, 2011 2:40 pm

    Regarding changes over time and the code — I think that IF the majority of residents of Ellison Heights want the neighborhood to redevelop with higher density, then perhaps the zoning district should be changed to reflect the smaller lot size. Do it upfront, rather than thorough this crazy process we have now, where people are circumventing the plain meaning of the code.

    We will need to fund the CIP to support additional school capacity, stormwater infrastructure, etc, that will be needed with a doubled density.

  12. Art McArthur on March 3rd, 2011 3:44 pm

    To All,

    I don’t normally comment on these threads, but since I have been singled out I will respond with the following statement. I have taken it upon myself to commission one of the best Land Use Attorney’s in the state of Virginia “Attorney John H. Foote” at the law firm of “Walsh, Colucci, Lubeley, Emerich & Walsh, P.C.”. This firm retains the some of the foremost experts on Land Use in the State of Virginia. The report will be presented to City Council before the March 7th working session which will officially receive the ZOAC report. Our report will provide an independent legal analysis of the ZOAC Recommendation #6. It will also posted on http://www.SaveOurLittleCity.com for everyone to read by the 7th of March. While I personally feel the ZOAC report is slanted and disingenuous, I wanted an expert to analyze the ZOAC report for accuracy. This will enable all residents to make an independent and informed decision on this subject.

  13. Gordon Theisz, City of Falls Church on March 3rd, 2011 7:56 pm

    The grandfathering of substandard lots to which Mr. McDonald refers is to allow development of a substandard lot that cannot be “reasonably combined” to make a standard lot size. The code intends to create standard lots. Substandard lot development is the exception. “Reasonably combined” is a geometric thing – for example two lots in a T or L shape, or end to end – these cannot be “reasonably combined”.

    If Mr. McDonald had 5 substandard lots side by side – it should be obvious to everyone that he could have created two standard sized lots and have one substandard lot left over (still developable because it cannot be reasonably combined with the others).

    As I understand council and school board analyses, single family homes cost more in City services than they bring in in tax revenue. So while the tax revenue increased from the new homes, the drain on the city also increased. It is a double edged sword.

    As a citizen, I expect the zoning law to be followed as written. In the case of substandard lots being split apart and averaging of front yards, the zoning department is ignoring plain language portions of the law.

  14. Andy Rankin (Falls Church) on March 3rd, 2011 11:51 pm

    The more I think about this issue the more obvious it seems to me. Is the following line of reasoning on track?

    Changing zoning rules is delicate because it really can have a big impact on the value of someone’s property. However, it seems like the hard work on that front was done 50 (or whatever) years ago. Back then the citizens got together and decided what the new standard lot size should be. They agreed on a way to allow for some substandard lot development – in cases where the owner of a substandard lot couldn’t reasonably combine it with another lot to make a standard lot. My guess is that getting that updated zoning in place was a battle back then – but somehow the citizens agreed to a plan.

    It doesn’t seem like we’re doing anything now other than trying to stick to that plan (which apparently we did for years). I can see that since the rules have been interpreted differently (since about 2000 I guess) some property owners have started to bank on achieving a certain amount of value from their property that they probably shouldn’t have been banking on.

  15. Dan Maller, City of Falls Church on March 4th, 2011 3:28 pm

    In 1944, the Town created the R-1B zone and required 7,500 sf and a 50′ wide lot (both exactly 2/3 of the R-1A requirements). There was no grandfather clause and across the City neighborhoods were developed accordingly. Then in 1959 the R-1B requirement was changed to 60′ and the grandfather clause added. That was a balanced and sensible thing to do, since people with lots between 50-60 feet were following the letter of the code.

    The Comprehensive Plan is the statement of City Policy and it makes no mention whatsoever of any loopholes, in fact it is very specific that the R-1B future land use is “low density.”

    Here is a quote from this radical anti-property rights manifesto: “The purpose of the residential districts is to maintain the City’s residential character, to preserve the integrity of the existing residential neighborhoods, and to meet the residential needs of the City’s population. Having five districts provides for a variety of housing types and densities ranging from single-family detached units at a density of one to six units per acre…”

    And here is the comment about the R-1B district: Low Density Residential (6.0) – Single-family detached residential units and two-family attached units (duplexes) at a density of one to almost six dwelling units per acre. This category applies to the City’s existing single-family detached residential neighborhoods, and is intended to maintain the residential character of the City, while limiting lot cover- age and providing for significant green space. It corresponds to the R-1B Zoning District.

    Here is a link:

    These comments are consistent with the preamble and statements of intent and purpose in the Zoning Ordinance, which legally is supposed to implement the Comp Plan. If these things are going to be changed, it should be decided by the City through its proper legislative process and not administrative fiat.

  16. Art McArthur on March 7th, 2011 6:08 pm

    Legal analysis of the ZOAC report clearly calls into question their conclusions. The report is available for all to read on http://www.saveourlittlecity.com.

  17. Andy Rankin (Falls Church) on March 7th, 2011 9:59 pm

    I’m sure Mr. Foote is a good lawyer and did a thorough job but I don’t think you can really call it an independent analysis if it was paid for by someone who clearly stands on one side of the issue.

    But for fun I tried to wade through the report. I’m no lawyer so parts of it were dang confusing to me, but I found the arguments interesting. Here’s a layman’s take on some of the points:

    * A lot of the report seems to rely on the ZA’s interpretation of the rules over the past several years to justify the development of substandard lots that were previously combined. What if the ZA was wrong all this time?

    * The report shoots down one legal case supporting the City’s rules by saying the judge didn’t really want to rule that way but that at the time cases like that were heavily influenced by ZA decisions (which I guess was bad then… but is good now?).

    * One thing that still gets me is if the language in the zoning rules wasn’t meant to force these lots into conforming ones then what was the point of it? Seems like the intention is totally clear and if anything there are arguments for why they didn’t button it down carefully enough. Why else is the language in there?

    * The report says that the ZOAC’s concern that development of these substandard lots will lead the destruction of the character of the neighborhoods is flawed and a scare tactic. One point they make is that these developments haven’t happened rampantly over the past few years so they’re not likely to start. But what if you look at them since 1950 – on a graph the line would be shooting straight up right now (since apparently none of these developments happened for decades). So, I don’t know if they will increase or not but it seems at least as possible as them not increasing.

    * The report says that what constitutes the destruction of neighborhood character is one of opinion and taste. I think that’s totally true – but I also think that’s why zoning rules exist in the first place – to put some kind of community guidance around what the neighborhood character is. With their argument, why not just change the standards for lots and let everyone develop smaller lots if they want to?

    * As for the scare tactic, this entire report seems to be a scare tactic: City, if you pass these zoning changes make sure you save up for a bunch of legal battles.

    * The fiscal impact of one of these houses (or any new house built in the City) is completely dependent on whether or not (and how many) kids end up living there and going to City schools. The cost to educate kids is by far the biggest expense to the City and depending on the house just one kid will cost more than the house brings to the City in real estate taxes (and certainly 2 kids or more isn’t close). So, what are the stats? What percent of single family homes in the City have public school kids in them? What percent of newly constructed homes? It seems like the data shouldn’t be too hard to pull together.

    Well, that was fun. Back to work for me.

  18. Suzanne Updike on March 8th, 2011 1:48 pm

    Another potential fiscal impact that isn’t getting much attention: stormwater management. Much of the city has old, inadequate stormwater pipes; some streets have no piping or inlets at all. Parts of the city flood in heavy rain. We need to dedicate some serious money to the CIP to fix existing problems, as well as comply with the upcoming TMDL requirements from EPA (dealing with water quality not flooding).

    Redeveloping with higher density will increase stormwater flows. This means that the price tag to fix things is likely to go up– a cost that will be absorbed by taxpayers.

Feel free to leave a comment. Please increase the credibility of your post by including your FULL NAME and CITY. All comments are subject to editing for courtesy and content.