COMMUNITY COMMENT: Controversies Continue in Zoning
By GORDON THEISZ
May 30, 2012
• Redevelopment plans that do not conform to the code are being approved without Board of Zoning Appeals (BZA) hearings for variances.
• Citizens do not have adequate opportunity or notice that something is happening in their neighborhood that might require action on their part.
• Citizens are severely hampered in their ability to bring about an appeal of a zoning administrator’s decisions.
• The zoning administrator’s decisions are “presumed correct” by courts, but some decisions do not comply with the plain language of the code and therefore are incorrect.
• The City Manager is not providing effective oversight of the zoning office, allowing the zoning administrator’s power to go unchecked.
• Citizen volunteers on the BZA may have resigned because they did not have confidence that the zoning administrator would follow the code and abide by their decisions.
Word is that the March resignations of John Murphy and Kent Taylor from the Board of Zoning Appeals (BZA) were entered into the public record at the May BZA meeting. Since the City website shows no BZA minutes posted since 2010 and no agenda posted since March 2011, it is apparent that they will not actually be available for the public for several years.
I think we need to know why two dedicated citizens would resign so abruptly from a local board. I requested copies of their letters in April and was denied. The local news media were similarly rebuffed. The City declined citing personnel privacy issues as delineated in the Freedom of Information Act.
Asked directly about their resignations in April, Mr. Murphy told me “my letter speaks for itself” and Mr. Taylor said “sorry, I’m done.”
The issue debated at the time of their resignations was City approval of a porch projecting beyond allowed limits into the front yard at City Manager Wyatt Shields’ new home. The BZA had itself denied a variance for this several months earlier only to have the City approve it in a modified form (that still was not in compliance with the code according to board members).
I understand Murphy and Taylor’s decision to leave the Board. Why serve on a public body, sworn to uphold the laws of the City, when the City staff itself won’t follow them and ignores BZA decisions?
The builder of the home wrote in a comment in the Falls Church Times that plans were modified after the BZA denial and the City approved them. But how could the City approve plans that were not compliant with the zoning code, even if modified, without a second variance hearing before the BZA? Members were told at a subsequent BZA meeting that City approval of modified plans was “usual and common practice.” The City has thus far failed to provide the code reference to support their action.
I did research into past BZA actions as part of my own legal case against the City in 2007. Prior to 2005 the BZA heard multiple variance request hearings nearly every month. Since then the BZA often has no meeting at all. Is there no need for variances anymore? Are all new construction and rebuilding activities actually complying with the letter of the law? Or is the zoning administrator just approving these on his own when he deems them “usual and common practice?”
The builder stated that none of the neighbors appealed the new approval of the porch. But when the City approves something, the neighbors usually are unaware. There is a 30 day window with which to appeal a zoning administrator’s decision. This public decision is not advertised aside from a monthly list of approved permits buried deep on the website. Thus, the first time a neighbor might have the opportunity to notice something wrong is when construction starts.
On an appeal, the courts presume a zoning administrator’s decisions correct. This is an enormous hurdle to overcome as an appellant. Combine that with being unaware in the first place and a 30 day window to appeal, the odds are stacked high against the neighbors.
The Shields zoning problem is just another symptom of the failure of the City Manager to oversee his zoning administrator. Mr. Shields finds his integrity questioned over an approval on his own property because the zoning administrator ultimately reports to Shields, a clear conflict of interest. Even if Shields was blinded from knowing what the builder had planned for their new home, the compliance for zoning on his property should have been perfect and he should have implored the staff to make it that way.
None of this is new. The City has found itself with a pending legal action by neighbors against a decision of the zoning administrator nearly continuously since 2005. The issues are mostly narrow in focus, but always involve the contention that the zoning administrator is not following the plain language of the zoning code. Instead, he is “interpreting” a much wider leeway than the language allows.
The purpose of the city code is to “preserve the residential character of Falls Church City.” The zoning laws set the limits for development. The management of this City, by allowing the power of the zoning administrator to go unsupervised and to push beyond the limits of the zoning code, is abdicating their responsibility to uphold this purpose and thereby negating the property rights of all of its citizens.
Two upstanding citizens no longer serve the City. The City management hopes this latest zoning controversy will once again fade away. While there are many heavy issues the City government is grappling with right now, why can’t it get something basic like property rights correct?
Will our City Council, the only voice the citizens have, take the City Manager to task on zoning issues? Or will it allow City management to ignore proper application of the zoning law for another two years?
Gordon Theisz is a Falls Church City resident who is active in numerous local civic organizations.
By Stephen Siegel
May 30, 2012