COMMUNITY COMMENT: Controversies Continue in Zoning

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By GORDON THEISZ
May 30, 2012

Many citizens continue to be concerned about problems in the City zoning office and its administration. Here are some of the ongoing issues:

• 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 th

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e 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.

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May 30, 2012 

Comments

24 Responses to “COMMUNITY COMMENT: Controversies Continue in Zoning”

  1. TFC on May 30th, 2012 7:24 am

    Thanks for the informative article. Sounds like self-will-run-riot. Do you think the current effort to rewrite and review the code will have a positive effect on this situation or will it just be freshened code without enforcement?

  2. Dudley McDonald, Mechanicsville, VA on May 30th, 2012 8:49 am

    From afar, SCCDD !!!

    Ah, local governments! Wonderful bureaucracies or “burro-aucries” — depending upon one’s viewpoint.

  3. mel watson on May 30th, 2012 11:09 am

    If all of this is accurate – – and I am not saying it is or isn’t since I am not in a position to know – – looking at the big picture how on earth is the City going to “turn the corner” on redevelopment and thus bring relief to residential tax rates.

    If I recall correctly, isn’t the builder of the City Manager’s home related to him…..maybe his wife in fact?

  4. Andy Rankin (Falls Church) on May 30th, 2012 11:47 am

    I can understand why the City wouldn’t release Mr. Murphy’s letter but has anyone asked Mr. Murphy for a copy? Certainly it would be up to him whether or not to share it – and since he apparently told Gordon, “my letter speaks for itself” it seems like he would be okay with people reading it.

    It sounds like there are at least two openings on the BZA – hopefully they will be filled by people interested in being involved in this issues.

  5. name withheld on May 30th, 2012 11:54 am

    I tend to agree with your commentary. However, one statement caught my eye.

    “The City has found itself with a pending legal action by neighbors against a decision of the zoning administrator nearly continuously since 2005.”

    Question: Just for residential areas, how many complaints were lodged that progressed to legal action and for which projects? I imagine there were many more complaints that were stifled by City Hall and did not make it to the courts.

  6. Stephen Siegel on May 30th, 2012 12:05 pm

    Andy,

    I asked Mr. Murphy for his letter when I wrote about this case, and he declined. However, I’m told it was but two sentences long and didn’t delve into his reasoning. Mr. Taylor’s letter, I’m told, was more expansive.

  7. TFC on May 30th, 2012 12:06 pm

    A new member of BZA was noted in the council meeting last night.

  8. City Planner, Falls Church on May 30th, 2012 2:37 pm

    2005 was the year of the Cochran decision by the VA Supreme
    Court which changed the way variances were handeled under the law-had to be a hardship approaching confiscation. In response, the legisalture then relaxed the standard again by allowing modifications from the code via Special Permit. Many VA jursidcitions now have two levels of relief-Special Permits for smaller, more routine deviations from the code for additions, porches, decks, etc. and Variances for true hardship cases.

  9. D. Wayne Jones on May 30th, 2012 5:41 pm

    Dear City Planner,

    I feel confident that the people writing these comments don’t want any facts that will get in the way of a good argument.

  10. City Planner on May 30th, 2012 6:40 pm

    The FC City code allows the Zoning Administrator the ability to approve some deviations from the Code administratively-which is likely an unfortunate necessity because large portions of the City have older homes that do not comply with zoning districts that were put in place years later. Requiring all deviations, whether via special permit or variance to be approved by the BZA would ensure a more thorough public review of any projects that do not comply with the code-it would also make the BZA extremely busy, which is not ideal either. The entire code needs to be revised from top to bottom (it dates to 1973) to reflect the current realities of housing development in FC balanced against protecting the character of our neighborhoods-not an easy task but, long overdue..

  11. incognito on May 30th, 2012 8:16 pm

    Dr. T, you have a lot of gall questioning the quaint customs of our city government because after all, isn’t this the best little city in the world?

    Just kidding…..in reading your commentary I was struck by how much of it could be applied to the schools as well….”private personnel matters” is the phrase they often use to deflect questions or critiques of what they do too!

    When key school personnel (administrators and professional staff) leave, we don’t ask to see the letters they wrote or hear their reasons for leaving….we just get a cake and send them on their merry way.

    It is refreshing to me to see someone like you stick their neck out in order to reveal some hard truths rather than rupture your elbow joining those who can’t get enough of patting themselves on the back all the time.

  12. Gordon Theisz, Falls Church on June 1st, 2012 8:24 am

    City Planner – not sure if you are in the local govt or not – the plain language of the code defines the setback and projections. There is no provision for fudging it. Our City Council has not passed a zoning law change granting the zoning administrator administrative power to administratively ignore setback requirements.

    You said: “Requiring all deviations, whether via special permit or variance to be approved by the BZA would ensure a more thorough public review of any projects that do not comply with the code-it would also make the BZA extremely busy, which is not ideal either.” Why would you ever fear a “more thorough public review” of a project? There should not be a cone of silence over zoning decisions. Just do it right the first time.

    Falls Church City recently undertook a zoning rewrite action that spanned several years and while the ZOAC did recommend some small changes, they found no need for a complete zoning code rewrite. The consultant the City hired suggested that several provisions of our code (Iike front yard averaging) were modern and ahead of the curve.

    Calling for a complete re-write is just an old excuse to avoid any real action – that action would be for the City Council to insist that City management actually follow provisions the code we have right now.

  13. Suzanne Updike on June 1st, 2012 8:42 am

    City Planner — do you work for the City?

    What part of the code allows the ZA to approve some deviations from the code administratively? Seems like that piece of information is important in this discussion of the roles of the ZA and the BZA.

    Some of the recent zoning controversies go beyond small variances or deviations from the code…. Allowing property owners to break off and develop substandard lots isn’t a small deviation from the code. (I know some argue otherwise, but the intent of the code seems pretty clear.) The way the ZA had stopped enforcing front yard averaging wasn’t a small deviation from the code, either.

    If parts of the zoning code arent working, then they should be changed (after public review) rather than just ignored or “interpreted” by the ZA. If we want denser development on smaller lots, then change the minimum lot size. If front yard averaging isnt desired everywhere, then maybe we need to create overlay districts for neighborhoods that want this kind of setback to stay.

    I agree that the zoning code rewrite is overdue and could reduce the need for variances in neighborhoods were the code doesn’t match what’s on the ground.

  14. City Planner on June 1st, 2012 9:09 am

    I do not work for the City and did not mean to imply that. I live in the City.

    Sec. 48-142(3) allows the ZA to approve additions for non-conforming uses administratively or refer the matter to the BZA if he sees fit.

    Many homes in the City are non-conforming-Greenway Downs is an example and THE Falls Church City Planner (Snyder) has proposed addressing that. But the problems extend beyond Greenway Downs.

    An overly busy BZA is a sympton of Code that needs revising. In a perfect world, most development would occur without the need for a variance. There will always be circumstances where it is warranted, but you shouldn’t have a majority of proposals for a residential addtion or new house trigger the need for BZA action . BZAs approve exceptions TO the rule, not exceptions that ARE the rule.

  15. mel watson on June 1st, 2012 12:18 pm

    The City Council should demand that the administative side of the City adhere to the current rules on the books today, and on a parallel track whatever ambiguity that exists today (along with improvements) should be cleaned up through whatever the process is for codifying required changes. Someone needs to set forth a plan for cleaning this up with regular status reporting to citizens and folks need to be held accountable for achieving this. Am I mistaken and why is that not being done?

  16. Suzanne Updike on June 1st, 2012 1:54 pm

    City Planner,

    Section 48-142(3) is pretty specific about what it allows. The ZA can approve additions to nonconforming residential structures that meet specific restrictions. (He needs to follow the code, which makes allowances for nonconforming uses). Here it is:

    Sec. 48-142. ….
    (3)
    Extension of a residential structure in the R-1A, R-1B, or R-C district. In an R-1A, R-1B, or R-C district, where an existing residential structure is nonconforming with respect to any current setback requirement, a structural addition which would occupy a required side and rear yard setback area may be approved by the zoning administrator; provided that:
    a.
    No portion of the addition would be closer to a front or side lot line than the existing structure;
    b.
    No portion of the addition would be less than ten feet from a side lot line in an R-1A district, less than seven feet from a side lot line in an R-1B district, or less than ten feet from the side or rear perimeter setback line for the R-C district; and
    c.
    No portion of the addition would extend from the existing structure toward the required rear yard a distance greater than 15 feet in the R-1A and R-1B districts.
    However, the zoning administrator may deny such application and refer the application to the board of zoning appeals for consideration of a variance, as set forth in section 48-172(3); when, in the judgment of the zoning administrator, the application presents an unusual or peculiar circumstance such as the configuration of the lot, topography, safety, or other conditions which would adversely affect neighboring properties.

  17. Gordon Theisz, Falls Church on June 1st, 2012 4:37 pm

    Suzanne is correct on her citation – the ZA’s discretion is quite limited by that section of the code. Furthermore, if you re-read my letter, you’ll note that the BZA is not overly busy. In fact, it is RARELY busy. Prior to 2005, it was pretty busy. The reason for this is that in 2005 a new zoning administrator was appointed and in 2006 there became a new City manager. Since then, ZA decisions have been challenged nearly continuously by NEIGHBORS not the property owners. Prior to 2005, it was the property owners seeking variances. The cause and effect seem pretty clear to me.

  18. John Murphy, Falls Church on June 1st, 2012 6:24 pm

    City Planner,

    Thank you for raising Cochran. It provides a great opportunity to make a point.

    The Virginia Supreme Court did reiterate that the threshold for granting a variance was a hardship approaching confiscation with the Cochran decision in 2004. The decision did not change the law; it only reinforced long-standing language in the state code. It might be more accurate to say the decision confirmed that BZAs had no authority to grant variances that did not comply with the code. BZAs were acting beyond the authority granted to them by the State. Although this might have been a common policy and practice (the three consolidated cases were from Pulaski, Fairfax, and Virginia Beach), it did not comply with the law.

    When the law is not meeting the desires of the legislative body, it is incumbent on the legislative body to change the law. That is what happened. The General Assembly removed the requirement that a hardship approach confiscation and granted municipalities new authorities for modifications or minor deviations in the aftermath of the Cochran decision. The City of Falls Church did not initiate code changes to take advantage of those authorities. While that might leave the City in a tough spot, staff or BZA interpretation beyond the clear language of the code is still prohibited legislative action, no matter how good the intention or equitable the outcome.

    The City zoning code clearly defines the authorities granted for both administrative approvals by staff and approvals by the BZA. Both staff and the BZA can act only within those authorities. Change to the existing zoning code is within the legislative purview of the City Council. A policy or practice cannot take the place of a change in the law. The Cochran decision made that clear.

  19. Andrew Smythe on June 4th, 2012 12:49 pm

    City Planner,

    I have been a resident of Greenway Downs for 11 years. I can assure you, Greenway Downs lies outside the city limits of Falls Church City.

  20. Just from my experience in Falls Church on June 5th, 2012 11:31 am

    To Incognito:

    People would be more inclined to stick their neck out and discuss what really goes on in our schools if it weren’t for the retaliation they fear that would come to their children.

    This whole issue does sound like a big analogy to what goes on in our schools especially when I read about having a team make one determination and then it seems the rules are changed and something opposite happens. The shell game as one parent articulately called it. Just keep changing the rules/interpretation and then the whole year will go by and they don’t have to actually do anything at all.

    Whatever happened to intent and spirit of the law/code?

  21. Just from my experience in Falls Church on June 5th, 2012 11:46 am

    One more thing Incognito:

    About that private personnel matter issue:

    It is a very effective smoke screen. The schools can even “create a reason” to suspend a teacher and never have to answer any questions from the community about it while hiding behind a private personnel matter. I don’t believe the school board even knows what really happened (was fabricated.) Lois Berlin will never have to answer questions from the community about her handling of the trumped up circumstances that led to a teacher’s temporary suspension because Berlin “retired” (with cake and everything) and it was a “private personnel matter.”

    What’s so sad is that we are not talking about the impact on a porch or property we are talking about real and permanent consequences to children in our community.

  22. John D. Lawrence, City of Falls Church on June 8th, 2012 1:17 pm

    Andrew S.:

    Look at the map on the City’s website (D-2). The City boundary is Washington Street, so Greenway Downs is in the City unless you find another area named Greeway Downs. The one in the City is basically the streets of W. Marshall, W. George Mason, W. Greenway, W. Cameron, and W. Westmoreland. Maybe a bit on either side as well, but that’s basically it.

    http://www.fallschurchva.gov/content/docs/map_citystreetindex.pdf

  23. John Murphy, Falls Church on June 8th, 2012 4:03 pm

    John and Andrew S.

    Greenway Downs was developed before there was a City of Falls Church. I was born and spent my first 10 years in the County part on the South side of Lee Highway/Washington Street. I don’t know the status of the zoning for the County portion but the City portion could certainly use some help. ZOAC recommended lot sizes and setbacks that are in line with the existing houses rather than making everything nonconforming.

  24. Andrew Smythe, Fairfax County on June 11th, 2012 9:10 am

    John D. Lawrence – Take a drive down Lee Highway / Washington Street sometime today. You will see two prominent signs that say “Greenway Downs, est 1942”. One is located on Winchester Way, behind the Italian Cafe. The other is located on Woodlawn Ave, on the median between that divided highway. These are both located on the southern portion of Lee Highway / Washington Street. That is Fairfax County – not Falls Church City, zip code 22042. Should I transfer my children from Timber Lane E.S. [on West Street] to Mt Danial E.S.?