COUNTY BOARD TO CONSIDER AUTHORIZING BOARD OF ZONING APPEALS TO APPROVE USE PERMITS

The County Board will hold a public hearing on December 9, 2006 to consider a proposed Zoning Ordinance Amendment to give the Board of Zoning Appeals (BZA) the authority to grant use permits. 

This Zoning Ordinance Amendment would give the BZA the authority to approve use permits that modify placement, height and coverage requirements for by-right development, primarily involving one-family dwellings.  The Code of Virginia restricts the ability of the BZA to approve variances from strict application of the Zoning Ordinance.  The Code of Virginia gives the County Board the authority to authorize the BZA to grant use permits.  The use permit process could be used as an alternative to the variance process that has been used by Arlington homeowners to deal with the constraints of their lots and/or existing dwellings when designing improvements.

THE PURPOSE OF THE PROPOSED AMENDMENT:

In 2004 the Supreme Court of Virginia issued a decision in the case of Cochran v. Board of Zoning Appeals.    The Arlington County BZA was not the plaintiff in this case, however, the Supreme Court ruling effects the way all BZA's should apply the State statute.  The single opinion disposed of three cases.  In all three cases the Supreme Court ruled that each of the respective circuit courts erred in upholding the BZA's grant of a variance.  In so ruling, the Supreme Court adhered strictly to its previous rulings that a BZA lacks authority to grant a variance unless the property owner loses "all reasonable beneficial uses of the property, taken as a whole," without a variance.

The standard stated by the Court relied upon the statutory language governing issuance of variances.  In pertinent part, Virginia Code section 15.2-2309(2) allows BZAs to grant variances "where... the strict application of the terms of the ordinance... will alleviate a clearly demonstrable hardship approaching confiscation."  The Court applied the standard for a regulatory taking, or confiscation, (when a property owner loses all reasonable beneficial use of property) in determining when a variance may be granted.  It noted that the BZA lacked discretion to even consider granting a variance until this threshold was met. 

The variance process has afforded Arlington home and property owners the ability to design improvements that better suit their needs, respond to existing construction on their properties and fit in better with the surrounding neighborhood.  The variance process is used primarily for additions to one-family dwellings and new construction of one-family dwellings; however, the BZA may consider variances for any by-right development where there is no special exception use permit or site plan process for approval of placement and other modifications by the County Board.  In light of the Supreme Court's renewed emphasis on the limited instances in which variances may be granted, variances may be rarely granted in the future and a process afforded to Arlington home and property owners for many years would end.

An alternative process may be available, however.  The Code of Virginia gives the County Board the authority to give the BZA the authority to approve use permits as follows:

BZA - Section 15.2-2309.6

To hear and decide applications for special exceptions as may be authorized in the ordinance.  The board may impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.

No special exception may be granted except after notice and hearing as provided by Section 15.2-2204.  However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across  the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.

The proposed Zoning Ordinance Amendment would, in short, establish a use permit process, administered by the BZA, to replace the variance process.  The application, notification, and public hearing process would remain the same as the variance process.

THE ZONING ORDINANCE TEXT AMENDMENT

SECTION 36. ADMINISTRATION AND PROCEDURES

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1. Board of Zoning Appeals; Variances and Appeals.

            1.                     There shall be a Board of Zoning Appeals as provided for and having the powers, functions and responsibilities as described in the Code of the Commonwealth of Virginia.

            2.                     Every appeal from a determination of the Zoning Administrator and every application for a variance shall be filed in writing with the Zoning Administrator. The time of the public hearing is determined by the Board of Zoning Appeals. The filing fee shall be as follows:

                        a.                     Appeals from a determination of the zoning administrator‑‑Three hundred forty dollars ($340.00).

                        b.                     Variances or Use Permits for existing single-family residential‑‑Two hundred eighty-five dollars ($285.00) for the first subsection of the zoning ordinance being modified. Each additional subsection to be modified will be an additional fee of twenty percent [20%] of the base fee.

                        c.                     Variances or Use Permits for single-family new construction/resubdivision for new construction‑‑Two thousand two hundred sixty dollars ($2,260.00) for the first subsection of the zoning ordinance being modified. Each additional subsection to be modified will be an additional fee of twenty [20] percent of the base fee.

                        d.                     Variance or Use Permit applications from nonprofit organizations and for nonprofit institutional uses‑‑Two hundred thirty-five dollars ($235.00).

                        e.                     Variances or Use Permits for a building location error, defined as a request for an "as-built" variance when a new structure is not built in accordance with the approved plans—Three thousand four hundred dollars ($3,400.00).

                        f.                      Variances or Use Permits for all other uses—Two thousand eight hundred twenty dollars ($2,820.00) for the first subsection of the zoning ordinance being modified. Each additional subsection to be modified will be an additional fee of twenty [20] percent of the base fee.

            3.                     In addition to the above, the board shall have authority to grant, upon such conditions and safeguards as it may determine, such variances from the ordinance as may be in harmony with its general purpose and intent, so that the spirit of this ordinance shall be observed, public safety and welfare secured, and substantial justice done, as follows:

                        a.                     Permit the continuance of a nonconforming use in a conforming building for periods of three (3) years beyond the three-year limitation contained in Section 35, subsection B.2, if the board finds that: (a) said nonconforming use is not detrimental to, and does not affect adversely, adjacent property by reason of the nature of the use, generation of traffic, parking, lighting, noise and similar factors; (b) no commercial display, lighting, advertising and wholesale or retail merchandising is carried on in connection with the conduct of said nonconforming use; (c) such discontinuance shall work practical difficulty and undue hardship upon the owner of said building.

            4.                     If any variance or use permit granted by the board of zoning appeals is not acted upon and put into effect within one (1) year after the date of such grant, then the variance or use permit shall be null and void and of no force and effect.

            5.                     Every applicant for a variance or use permit shall file with his application a complete disclosure of the equitable ownership of the real estate to be affected including in the case of corporate ownership, the names of stockholders, officers and directors and in any case the names and addresses of all of the parties in interest; provided that the requirement of listing names of stockholders, officers and directors shall not apply to a corporation whose stock is traded on a national or local stock exchange and having more than five hundred (500) stockholders.

6.         The Board of Zoning Appeals may approve use permits that allow modifications of placement, coverage and/or height requirements for structures on lots where there is no option in the Zoning Ordinance to allow modification of requirements by the County Board, such as special exception use permit described in Section 36.G. or site plans described in Section 36.H.  The Board of  Zoning Appeals may impose conditions on the use permit that it deems necessary in the public interest, including limiting the duration of the use permit.  The BZA shall approve a use permit when it finds:

a.         That the proposal will not affect adversely the health or safety of persons residing in the neighborhood.

b.         That the proposal will not be detrimental to the public welfare or injurious to property or improvements in the neighborhood.

c.         That the proposal will not be in conflict with the purposes of the master plans of the County.

d.         That the modification will promote compatibility of development with the surrounding neighborhood.

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FREQUENTLY ASKED QUESTIONS:

During discussions with citizens several questions have been raised.  The following is a list of some of these questions. 

1.  What is the Board of Zoning Appeals (BZA).

The BZA is a five-member board made up of Arlington residents.  The BZA is appointed by the Circuit Court.

2.  What does the BZA do?

Section 15.2-2309 of the Code of Virginia provides the "Powers and duties of boards of zoning appeals"  as follows:

§ 15.2-2309. Powers and duties of boards of zoning appeals.

Boards of zoning appeals shall have the following powers and duties:

1. To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this article or of any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision.
2. To authorize upon appeal or original application in specific cases such variance as defined in § 15.2-2201 from the terms of the ordinance as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship; provided that the spirit of the ordinance shall be observed and substantial justice done, as follows:

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of the piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the utilization of the property or where the board is satisfied, upon the evidence heard by it, that the granting of the variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance.

No such variance shall be authorized by the board unless it finds:

1. That the strict application of the ordinance would produce undue hardship;
2. That the hardship is not shared generally by other properties in the same zoning district and the same vicinity; and
3. That the authorization of the variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance.

No variance shall be authorized except after notice and hearing as required by § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.

No variance shall be authorized unless the board finds that the condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance.

In authorizing a variance the board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.

3. To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.
4. To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by the question, and after public hearing with notice as required by § 15.2-2204, the board may interpret the map in such way as to carry out the intent and purpose of the ordinance for the particular section or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.
5. No provision of this section shall be construed as granting any board the power to rezone property or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by the governing body.
6. To hear and decide applications for special exceptions as may be authorized in the ordinance. The board may impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.

No special exception may be granted except after notice and hearing as provided by § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.

7. To revoke a special exception previously granted by the board of zoning appeals if the board determines that there has not been compliance with the terms or conditions of the permit. No special exception may be revoked except after notice and hearing as provided by § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. If a governing body reserves unto itself the right to issue special exceptions pursuant to § 15.2-2286, and, if the governing body determines that there has not been compliance with the terms and conditions of the permit, then it may also revoke special exceptions in the manner provided by this subdivision.
8. The board by resolution may fix a schedule of regular meetings, and may also fix the day or days to which any meeting shall be continued if the chairman, or vice-chairman if the chairman is unable to act, finds and declares that weather or other conditions are such that it is hazardous for members to attend the meeting. Such finding shall be communicated to the members and the press as promptly as possible. All hearings and other matters previously advertised for such meeting in accordance with § 15.2-2312 shall be conducted at the continued meeting and no further advertisement is required.

(Code 1950, §§ 15-831, 15-850, 15-968.9; 1950, p. 176; 1962, c. 407, § 15.1-495; 1964, c. 535; 1972, c. 695; 1975, cc. 521, 641; 1987, c. 8; 1991, c. 513; 1996, c. 555; 1997, c. 587; 2000, c. 1050; 2002, c. 546; 2003, c. 403.)

3. What kind of notice will be given that a use permit request to the BZA has been made?

The Code of Virginia requires that notice be given that the BZA will hold a public hearing on  use permit to abutting property owners and property owners directly across the street.  In addition the public notice of items to be considered by the BZA is published in the newspaper, The Washington Times, like Zoning Ordinance Amendments.  The Arlington County Zoning Ordinance requires that variances or use permits be posted on signs throughout the neighborhood and on the subject property.  The public notice is e-mailed to the civic associations. The use permit notice will be the same as that presently given for variances.

Follow-Up Questions

• Why is the notice in The Washington Times?The County has a contract for all public notices. At this time, the contract is with The Washington Times.
• What email list is used to notify the civic associations? The County Board office maintains the list, which is published on the County Web site.

4.  What category of properties will be eligible?

The Board of Zoning Appeals may grant a variance from the strict interpretation of any part of the Zoning Ordinance, except where there is a special exception process that allows the County Board to grant a modification from the regulations.  Therefore, the proposal is to authorize the BZA to consider use permits for most questions of relief that now comes to it for variances.

Follow-Up Questions

• What is a “special exception process”?Within the Zoning Ordinance, there are many places where the ordinance sets basic requirements and then allows for them to be waived through a special exception process that involves a vote by the County Board. Two examples of special exception processes are Site Plans and Unified Residential Developments (URDs).
• What does the BZA currently do? Currently, the BZA considers applications for variances only where the applicant cannot use a special exception process identified in the Zoning Ordinance. An example is a single-family homeowner that wants a 22-foot back yard setback instead of the 25-foot setback required by the zoning ordinance.
• How will what the BZA does change if the new ordinance is adopted? The BZA will consider use permit applications and it is expected many fewer variance applications.
• When you say “use permit” does this mean that all use permits will now go through the BZA? No. The County Board will continue to hear the kinds of use permits it currently hears, for example use permits for unified residential developments, live entertainment and home day care. These are existing special exception processes.
• What will the BZA consider when it hears a use permit application.  Standards for the approval of use permits are in Section 36.G.1. of the Zoning Ordinance as follows:

                                                Use permits may be issued for any of the special exceptions or conditional uses for which a use permit is required by the provisions of this ordinance; provided, that the County Board shall find that after a duly advertised hearing, the use will not: (1) affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use; (2) be detrimental to the public welfare or injurious to property or improvements in the neighborhood; (3) be in conflict with the purposes of the master plans of the county. In granting any use permit the County Board shall designate such conditions in connection therewith as will, in its opinion, assure that the use will conform to the foregoing requirements and that such use will continue to do so.

• Are BZA decisions appealed to the County Board? No. BZA decisions are appealed to the Circuit Court.

5. Will the Zoning Administrator keep a database to inform applicants, the BZA and the public about what kind of use permits have been granted, where and under what circumstances?  Will the public have access to the databases?

Although an online database of information is not currently available, the County would like to place most of the paper information on the web for public access in the future.  Currently, public notices are placed on the web two and one-half weeks prior to each meeting.  A database is in the planning stages.

All information related to cases is available to the public, i.e. applications, staff reports, minutes, recordings of BZA public hearings, etc.  Upon request, staff will provide information on the kind of use permit, when and under what circumstances, and other related information.  All staff reports on individual cases, the applications, the public notices and the minutes of the BZA meetings and the recordings of the meetings are available for view by the public in the Zoning Office, located at Suite 810, Courthouse Plaza.

Follow-Up Questions

• Where can people see the list of BZA applications? The list of pending applications, the public notice, can be accessed via the County Web site. The public notice is posted approximately two and one-half weeks prior to the meeting
• What kind of information is published for each item? One can see—both in the advertisement and the agenda—the name of the applicant, the address of the property, the exception request, and the civic association in which the property is located, which is abbreviated at the end of the posting.
• Where can people see a list of what happened with each BZA application? This is not currently prepared in an easily accessible list.  This will addressed in the development of a database in the future.
• What is meant by “all information” is available? This means that people can view the application, the staff report, an audio recording of the meeting, etc. Currently, these are not available via the County Web site.

ARLINGTON COUNTY BOARD OF ZONING APPEALS ANNUAL REPORT 2005

The Arlington Board of Zoning Appeals (BZA) is made up of five members who are appointed by the Circuit Court.  They serve for staggered terms of four years.  Current members are: Barbara LaPlante, Scott McGeary, Darlene Mickey, Conchita Mitchell and Charles Smith.

The powers of the BZA are defined by State and County Code.  The State Code states in part that:

“Boards of zoning appeals shall have the following powers and duties:

1. To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this article or of any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision.

2. To authorize upon appeal or original application in specific cases such variance as defined in § 15.2-2201 from the terms of the ordinance as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship; provided that the spirit of the ordinance shall be observed and substantial justice done, as follows:

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of the piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the utilization of the property or where the board is satisfied, upon the evidence heard by it, that the granting of the variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance.

No such variance shall be authorized by the board unless it finds:

1. That the strict application of the ordinance would produce undue hardship;
2. That the hardship is not shared generally by other properties in the same zoning district and the same vicinity; and
3. That the authorization of the variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance.”

Cochran, et al V. Board of Zoning Appeals:  In April 2004 the Supreme Court of Virginia issued a ruling based on the appeal of three variance cases in three jurisdictions.  This ruling held that “…a BZA has no authority to grant a variance unless the effect of the zoning ordinance, as applied to a piece of property under consideration, would, in the absence of a variance, interfere with all reasonable beneficial uses of the property, taken as a whole...”  Staff believes that this ruling reinforces the existing state law that limits the authority of the BZA to grant variances.  As a result of this ruling, as of July 2004, Zoning Staff no longer makes recommendations regarding Variances to the BZA.  The BZA has continued to grant variances with appropriate consideration to the Supreme Court's decision and the entirety of the Virginia Code sections applicable to the role of the BZA. 

State Code, County Code and case law guide decisions of the BZA.  After the findings in Cochran, et al V. Board of Zoning Appeals by the Virginia Supreme Court in April of 2004, the work of the BZA has been more challenging.  Many homes in Arlington are older and built out of compliance with current code.  Homeowners who want to upgrade or make improvements to their homes often must apply for a variance.  The BZA strives to use good judgment when addressing these requests. 

The Code of Virginia (Section 15.2-2308) provides that “The Board shall keep a full public record of its proceedings and shall submit a report of its activities to the governing body or bodies at least once each year.” This memorandum and the attached tables are intended to serve as the basis for the required report for the year 2005.

Variances: During 2005, there were 120 Variance cases processed and heard at 11 public hearings held by the Board of Zoning Appeals (the “BZA”). These cases contained 168 requests to authorize variances to specific provisions of the Arlington County Zoning Ordinance. Table 2 lists the average number of variance cases per month for the years 1990 through 2005.  Table 3 shows the BZA actions on requests for variances from 1995 through 2005.  Table 4 shows the number of Variance requests by Zoning Section.  In 2005, the BZA granted 89 variance cases, most of them with conditions.  Of these 9, variance cases were approved in part or as modified by the BZA.  The BZA denied 25 variance cases and 6 were withdrawn.  The BZA granted approximately 79 percent of the variance cases that were heard in 2005 which is a significantly lower percentage than in past years.    

Variance requests in 2005 related mostly to the requirements for placement of structures on a lot. The most often requested variance (60) was for relief from side yard setback requirements (Section 32, Subsection D.2.b.).  The second most often requested Variance (45) was for relief from street setback requirements (Section 32, Subsection D.1.d). Variances for these two sections of the Zoning Ordinance comprised approximately 66 percent of the total number of Variances heard by the BZA in 2005. The third most requested variance (27) was for Variances from rear yard requirements.  The fourth most requested Variance was for additions totaling more than 50-percent of the floor area of the existing dwelling on substandard sized lots (Section 35, Subsection A.3.b.).  On November 15, 2005 the County Board approved amendments to the Zoning Ordinance related to lot coverage (Section 32, Subsection C) and for nonconforming buildings and uses (Section 35).  The requirement that additions may not exceed the existing floor area by more than 50-percent on substandard lots was deleted for the “R” districts.

Table 1 lists by month and year the number of variance cases since 1990.  The average yearly number of Variance cases heard by the BZA since 1990 is approximately 206.  As stated above, 120 Variance cases were heard in 2005 or 86 fewer cases than the yearly average since 1990.   The decrease in the number of cases may be a result of the Virginia Supreme Court ruling Cochran, et al V. Board of Zoning Appeals.

Appeals of Determinations of the Zoning Administrator:  In 2005 the BZA heard eight appeals of determinations of the Zoning Administrator.  Of these, the BZA upheld the determination of the Zoning Administrator in four cases and four cases were withdrawn from consideration by the Appellant.  Following is a brief synopsis of each case:

V-9873-05-Appeal: Appeal of a Notice of Zoning Violation and Order of Correction for operating a commercial catering service on property zoned "R-5", by Shane McGee, Esq., on behalf of Air Culinaire, Inc, Lessee; premises known as 805 20th St S.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Chick Walter, stating his concerns about the property, and there being no other speakers for this case, a motion was made by Mr. McGeary to accept withdrawal of the Appeal. The motion was seconded by Ms. Mickey and passed by a vote of 5 to 0.

V-9874-05-Appeal: Appeal of a Notice of Zoning Violation and Order of Correction regarding conversion of a guest house into a rental unit, by Marie Quinn, Owner; premises known as 3531 7th St S.

BZA Minutes: After a duly advertised hearing, at which no public testimony was given, a motion was made by Mr. McGeary to accept withdrawal of the Appeal. The motion was seconded by Ms. Mickey and passed by a vote of 5 to 0.

V-9875-05-Appeal: Appeal of a Violation Notice regarding operating a boarding house on property zoned "R-6" by the Leadership Institute, Owner; premises known as 3202 N Pershing Dr.

BZA Minutes: After a duly advertised hearing, at which no public testimony was given, a motion was made by Mr. McGeary to accept withdrawal of the Appeal. The motion was seconded by Ms. LaPlante and passed by a vote of 5 to 0.

V-9917-05-Appeal:  Appeal, by James Lay, Attorney, on behalf of William Bayne, Jr., et al, Owners, regarding various Zoning Violation Notices; 513 24^th St S. and 536 23rd St S.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Howard Weissman, and there being no other speakers for this case, a motion was made by Mr. McGeary to accept withdrawal of the Appeal. The motion was seconded by Ms. Mickey and passed by a vote of 4 to 0.

V-9925-05-Appeal: (Carryover) Appeal by Duncan Black, Attorney, on behalf of Irene Adams, Owner, of the Zoning Administrator's determination regarding the continuance of the nonconforming use of a property zoned "R-5" as a deli/convenience store; 805 20th St S.

BZA Minutes: After a duly advertised hearing, at which public testimony was given Jerry Emrich, Attorney, on behalf of Irene Adams, Apellant, and Richard Herbst, President of the Arlington Ridge Civic Association, Charles Walter, Peter Filon, Lawrence Douglas, Tisha Illingworth, Martin King, John Prignano, Walter Winn, Steven Wyner and Ted Saks, speaking in favor of the Zoning Administrator’s determination, and there being no other speakers for this case, by roll call vote the Board upheld the Zoning Administrator’s determination. The vote was as follows:  Mr. McGeary – yes; Mr. Smith – No; Ms. LaPlante – yes; Ms. Mickey – yes; and Ms. Mitchell - yes.

V-9931-05-Appeal: Appeal by James and Hilary Peoples, Owners, of the Zoning Administrator's denial of an Administrative Change request for a Special Exception Site Plan, re SP #355; 2022 N Monroe St.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by James Downey, Attorney, and James R. Peoples, Appellant, and Eric Dobson, Nancy Iacomini, Anne Quinn, Gigi Peel, and Maureen Ross, President, Cherrydale Citizens Association, all speaking in favor of the Zoning Administrator’s determination, and there being no other speakers for this case, Mr. Smith made the motion that the Board should take no action on the Appeal because the Board lacks the jurisdiction to do so. The motion was seconded by Mr. McGeary and passed by a vote of 5 to 0.

V-9932-05-Appeal: Appeal by Michael McHugh, Attorney, on behalf of Douglas and Mary Bennett of the Zoning Administrator’s approval of a building permit for a new dwelling; 2515 N Nelson St.

BZA Minutes: After a duly advertised hearing at which public testimony was given by Douglas and Mary Bennett, Appellants, and Michael McHugh, Attorney on behalf of the Appellants, and Patrick Burns, speaking in favor of the Appeal, and Lee Anne Geiger, Owner, and James Downey, Attorney, David Van Duzer, Architect, and Alexander Jones, Engineer, all speaking on behalf of William and Lee Anne Geiger, Owners, and Jane Bartlett, Susan Joy, Robert Burch,  Tracey Dougherty, William Dougherty, and Warren Amason, all speaking in favor of the Zoning Administrator’s determination, and there being no other speakers for this case, by roll call vote, the Chairman asked the question as to whether the Board should uphold the Zoning Administrator’s determination. The Board voted to uphold the Zoning Administrator’s determination by the following vote: Mr. Smith – yes; Mr. McGeary – yes; Ms. LaPlante – yes and Ms. Mitchell – yes.

ADDENDUM

APPEALS  FROM    BOARD  OF  ZONING  APPEALS  DECISIONS

1995  to   2005

Any action of the BZA may be appealed to the Arlington County Circuit Court.  Below, appeals cases have been listed with the published legal advertisement, then the decision by the Board of Zoning Appeals from the hearing minutes, and lastly, the Circuit Court and Virginia Supreme Court decisions.  

V-7800-95-APPEAL:  Appeal of the determination of the zoning administrator that an angled lot line can be used to meet the 60-foot minimum average lot width (Section 1, Definitions) requirement for the “R-6” District.  (Notice taken from the BZA meeting agenda of February 8, 1995)

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Rick Fagnoni, John Cornman, Al Bradford, Karen Gregory, Elizabeth and Bob Cannon, Marshall Kolin, and Reginald Cude in support of the appeal, and William B. Lawson, Jr., in opposition of the appeal, and there being no other speakers present for his case, a motion was made by Scott McGeary that the appeal be denied, and that the determination by the BZA be affirmed.  Motion was seconded by Bette Clements and passed unanimously 4 to 0.

Sloane v. BZA: The Circuit Court held that a slanted rear line could be utilized to measure lot width.  

V-7768-94-1:  Request of Sidney Davis, Owner, for a Variance to Section 32, Subsection D-3e, to permit a fence 6 feet in height instead of 4 feet as permitted, re a 6-foot high fence; premises known as 3600 South Kemper Road (16).  (Notice taken from the BZA meeting agenda of December 14, 1994)

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Sidney Davis and Jacqueline Williams and Estelle C. Drayton in opposition, and there being no other speakers present for this case, a motion was made by Bette Clements that the request be denied.  Motion was seconded by Gerald Kesten and passed unanimously 3 to 0.

DAVIS v. BZA:  This case was filed in 1995, and challenged denial of the height of the fence variance.  The petition for Writ of Certiorari was filed, but the Court never issued a writ, therefor no proceedings were held.

V-8332-97-3:  Request of Melissa Merson, Owner, for a Variance to Section 32, Subsection D-3b, to permit the location of an air conditioning unit heat pump unit 6 feet from the left side lot line instead of no nearer than 8 feet as required, re an air conditioning unit and a heat pump unit; premises known as 219 North Garfield Street (01). (Notice taken from the BZA meeting agenda of October 8, 1997)

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Mr. Semple, against, and by Melissa Merson in support, and there being no other speakers present for this case, a motion was made by Charles P. Monroe that the request be approved with the condition that the air conditioning unit and the heat pump unit be screened with board fencing.  Motion was seconded by W. Scott McGeary and passed unanimously 5 to 0.

SEMPLE v. BZA:  This case was a 1997 appeal to the Board of Zoning Appeals decision to grant a variance for an air conditioner unit and heat pump in the side yard setback.  The parties entered into an agreement to resolve their dispute, before the matter came before the Court.

V-8381-98-APPEAL:  Appeal of the determination of the Zoning Administrator that proposed Lot 11-A of the Fenwick & Lutrell Subdivision is a regular lot for the purposes of calculating the minimum average lot width; premises know as (6226) N. 23^rd Street. (Notice taken from the BZA meeting agenda of February 11, 1998)

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Michael Mutter, Michael Higgs, Suzanne Klein, Gabriel Goddard, William H. H. King, Mary Lou Higgs, Louise Chesnut, Michael Gick, William Ross, Gerry Procanick, William Gearhart, Rolfe L. Hillman, James Pebley, Robert Swennes, Pamela Fisher, and Ted Weihe in support of the appeal and Barnes Lawson, Jr., Dee Kirkbride and Michael Kirkbride in opposition of the appeal but in support of the Zoning Administrator's determination, and there being no other speakers present for this case, a motion was made by Bette Clements that the determination of the Zoning Administrator be overruled.  Motion was seconded by Scott McGeary and passed unanimously 4 to 0.

**** Request of William B. Lawson, Jr., Attorney, that the Board of Zoning Appeals (BZA) reconsider its decision in variance case V-8381-98-APPEAL heard by the BZA at its meeting on February 11, 1998; premises known as 6226 23rd Street North.

NOTE:  This agenda item is a formal request asking the BZA to reconsider their action on the above-mentioned Appeal.  If the BZA votes to reconsider, the BZA at that time will schedule it for the April, 1998, public hearing. (Notice taken from the BZA meeting agenda of March 11. 1998)

BZA Minutes: After a duly advertised hearing at which testimony was given by Barnes Lawson, Jr., a motion was made by Mr. Kesten that the request to reconsider case V-8381-98-APPEAL be denied.  Motion was seconded by Mrs. Clements and passed unanimously 5 to 0.

Kirkbride v. BZA:  This case was initiated by Petition for Writ of Certiorari and filed in 1998.  Involved was the Zoning Administrator’s determination of lot width.  The Circuit Court overturned the BZA decision.  However, the Virginia Supreme Court reversed that decision and reinstated the BZA ruling.

V-8907-00-2:  Request of Board of Trustees (Mount Zion Baptist Church), Owners, by Harry J. Thompson, Agent, for a Variance to Section 5, Subsection B, to Section 32, Subsections C, D-1c, and D-2b, and to Section 33, Subsection A-5, to allow a building height of 41 feet instead of 35 feet as permitted, to allow the lot coverage to exceed fifty-six (56) percent of the area of the lot as permitted, to permit a setback of 25 feet from the centerline of South Langley Street instead of 50 feet (0 feet from the right-of-way line instead of 25 feet) and a setback of 25 feet from the centerline of 19^th Street South instead of 50 feet (15 feet from the right-of-way line instead of 40 feet) as required, to permit a side-yard setback of 16 feet instead of 20 feet as required, and to permit an on-site parking area to encroach on the exterior ten (10) feet of a setback area (front), re a church sanctuary building, a freestanding bell tower, and a surface parking area; premises known as 3500 19^th Street South (04). (Notice taken from the BZA meeting agenda of May 10, 2000)

BZA Minutes: After a duly advertised hearing, at which public testimony was given by David Melvin Green and Edward Kenino, Architect, Harry Thompson, Agent, for, and Roxie Johnson, Anthony Peters, Carolyn LeVere, Shirley Green, Kathryn Henderson, Renee Cannon, Alfred Taylor, Jr., and James Greene, in opposition, and there being no other speakers for this case, a motion was made by Mr. Smith that this request be Approved with the conditions that the portico at the entrance on South Langley Street not be enclosed or built over, and that the dumpster on the loading area, and the location of the electric transformer and emergency generator be screened with vegetation or board fencing.  Motion was seconded by Mrs. Clements and passed 4 to 1 with Mr. Kesten voting against the motion.

A petition for review of the decision of the Board of Zoning Appeals was filed June 12, 2000 in the Arlington Circuit Court.  The Circuit Court upheld the BZA decision.

V-9104-01-1:Request of Kirkbride Construction, Inc., Contract Owner, by Dolores Kirkbride, Treasurer, to permit a setback of 10 feet from the N 21^st Rd right of way line, re demolition of existing dwelling and construction of new 2-story dwelling with covered front and left side porch; premises known as 2115 N Quinn St.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Michael and Dolores Kirkbride on behalf of Kirkbride Construction, Inc., Contract Owner, Mary McCutcheon, President, North Highlands Civic Association, and Kenneth Hutman, speaking in favor of the Variance and Mary Greene speaking against the Variance, and there being no other speakers for this case, a motion was made by Mr. Smith to approve the Variance, with the conditions that the two-story dwelling not be built over and the front and left side porch remain open, unenclosed and not built over.  Motion was seconded by Ms. Clements and passed by a vote of 3 to 0.

GREENE v BZA:  A Writ of Certiorari was filed with Circuit Court of Arlington County, Virginia on June 11, 2001.  The parties resolved their issues before the matter came to court.

V-9203-01-1:  Request of Paul Kingery, Owner, to permit a left side yard of 3.9 ft, a setback of 23.9 ft from the 27th St N right of way line and a setback of 17 ft from.the N Sycamore St right of way line, re bringing existing single family dwelling into compliance; premises known as 6430 27^th St. N.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Paul Kingery, Owner, and Joe Arcade, Jonathan Pavluk, Bill Golab, Jodi Maher, James Leyden, Kathy Killion, Jeff LaCorte, Giles Crimi, Sue Pressman, Kenneth Cole, and Tom Cedrone speaking against the Variance and there being no other speakers for this case, a motion was made by Ms. Clements to deny the Variance. The motion was seconded by Mr. Kesten and passed by a vote of 3 to 0.

KINGERY v. BZA: A Petition for review of the Board of Zoning Appeals decision was filed with the Circuit Court of Arlington County, Virginia on December 14, 2001.  An agreement was reached between the parties and a Final Order was entered by the Circuit Court on May 29, 2002 which permits certain setbacks and yards provided that the property owner makes certain alterations and improvements to the property by November 29, 2002.

V-9463-03-3-APPEAL: Appeal of the Zoning Administrator's determination that the Final Order (Chancery No. 01-888) is null and void and of no effect, by Paul Kingery, Owner; premises known as 6430 27th St N.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Paul Kingery, Owner, and Koffi Houngbeke, Colin Wilkshire, Richard Hagerty and Thomas Martin speaking in opposition to the Zoning Administrator’s determination and Constance Beaumont, John Zottoli, Ricky Pursley, Kenneth Cole, Jonathan Pavluk, Billy Golab, Jeanne Ormsby, Justin Kapca, Charles Lucas and William Griffith, speaking in favor of the Zoning Administrator’s determination, and there being no other speakers for this case, the Board upheld the determination of the Zoning Administrator by a vote of 5 to 0.

KINGERY v BZA:  A Petition for review of the Board of Zoning Appeals decision was filed with the Circuit Court of Arlington County, Virginia on April 8, 2003.  The Circuit Court upheld the BZA decision.

V-9271-02-1: Request of Elaine Brown, Owner, to permit a setback of 14.7 ft from the 6th St N lot frontage, 15 ft from the N Lincoln St lot frontage and 5 ft from the rear lot line, re new single family dwelling and detached garage; premises known as 522 N Lincoln St.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by William Barnes Lawson, Jr., Attorney on behalf of the Owner, Elaine Brown, Owner, Henry Brown, her spouse, Johnny Veliz, Contractor and Robert Mobley, Architect speaking in favor of the Variance and Carol Nation, John Berninger and Debra Heft speaking against the Variance, and there being no other speakers for this case, a motion was made by Mr. Smith to approve the Variance with the condition that the new dwelling and detached garage be constructed in accordance with the plans attached to the March 8, 2002 staff report to the Board of Zoning Appeals. The motion was seconded by Ms. Mitchell and passed by a vote of 3 to 1, with Mrs. Clements voting against.

John Berninger and Debra Heft, et al., v. BZA: A petition for review of the Board of Zoning Appeals decision was filed with the Circuit Court of Arlington County, Virginia on April 22, 2002.  On August 21, 2002 the Circuit Court upheld the BZA decision.

V-9531-03-1: Request of Mickey Simpson Builder, Inc., Owner, by Clarke Simpson, Vice-President, to permit a left side yard of 3.6 feet and an aggregate side yard of 11.6 feet, re new single-family dwelling; premises known as 713 N Barton St.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Clark Simpson, on behalf of Mickey Simpson Builder, Inc., Owner, and Robert Braddock, Architect, speaking in favor of the Variance and Bill Alsmeyer Johnson, Lynn Alsmeyer-Johnson, Elizabeth Miller-Moran, and Larry Dellinger, speaking in opposition to the Variance, and there being no other speakers for this case, a motion was made by Mr. McGeary to deny the Variance. The motion was seconded by Ms. Clements and passed by a vote of 4 to 1, with Mr. Kesten voting no.

Mickey Simpson Builder, LTD. v. BZA: A petition for review of the BZA decision was filed with the Circuit Court of Arlington County, Virginia on August 6, 2003.  The case is pending.

V-9770-04-1-Appeal: Appeal, by Mark A. Moorstein, Attorney, on behalf of the Belvedere Condominium Owner's Association, of the Zoning Administrator's determination regarding inclusion of Hillside Park, Owned by the County Board of Arlington County, Virginia as part of Site Plan #369 and other issues raised in the appeal; premises known as 1531 N Pierce St., Hillside Park bounded by 16^th Rd N and N. Pierce St., and a portion of vacated 16^th St. N. (RPC#17-003-001, -002, -010, -011, -012, -298, -299, and -300)

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Mark A Moorstein, Attorney, on behalf of The Belvedere Unit Owners Association, Appellant, and Gustav Chiarello, Attorney, Michael Shea, President of the Belvedere Condominium Unit Owner’s Association, Robert Blakeman and John C. Wertz, all speaking in favor of the Appeal, and Stephen MacIsaac, County Attorney and Jerry Emrich, Attorney speaking in favor of the Zoning Administrator’s determination. By roll call vote the Board voted to uphold the determinations in the Zoning Administrator’s June 25, 2004 letter.  The vote was as follows:  Mrs. Mitchell-Uphold; Mr. Kesten-Uphold; Mr. Smith-Uphold; Mrs Clements-Uphold; Mr. McGeary-Uphold.

Belvedere Condominium Association v. BZA: A petition for review of the BZA decision was filed with the Circuit Court.  A settlement was reached before the case was heard.

V-9820-05-1: (Carryover and Revised) Request of Sayed and Nanzaneen Majeed, Owners, to permit a left side yard of 8.7 ft, an aggregate side yard of 16.7 ft, a rear yard of 19.7 ft, measured to the balcony, and 24.1 feet measured to the wall of the structure, and a building height of 38.7 ft, re existing new one-family dwelling; premises known as 2004 N Culpeper St.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by Aristotelis Chronis, Attorney, on behalf of Sayed and Nanzaneen Majeed, Owners, and Willie Jackson-Baker, President, Langston Brown Civic Association, Peggy Jones, Tracy Greiner and Robert McGregor, Jr. speaking in opposition to the Variance, and there being no other speakers for this case, a motion was made by Ms. Mitchell to deny the Variance. The motion was seconded by Mr. McGeary and passed by a vote of 4 to 0.

Sayed and Nanzaneen Majeed v. BZA:  A petition for review of the BZA decision was filed with the Circuit Court.  The Circuit Court upheld the BZA decision.

V-9925-05-Appeal: (Carryover) Appeal by Duncan Black, Attorney, on behalf of Irene Adams, Owner, of the Zoning Administrator's determination regarding the continuance of the nonconforming use of a property zoned "R-5" as a deli/convenience store; 805 20th St S.

BZA Minutes: After a duly advertised hearing, at which public testimony was given Jerry Emrich, Attorney, on behalf of Irene Adams, Apellant, and Richard Herbst, President of the Arlington Ridge Civic Association, Charles Walter, Peter Filon, Lawrence Douglas, Tisha Illingworth, Martin King, John Prignano, Walter Winn, Steven Wyner and Ted Saks, speaking in favor of the Zoning Administrator’s determination, and there being no other speakers for this case, by roll call vote the Board upheld the Zoning Administrator’s determination. The vote was as follows:  Mr. McGeary – yes; Mr. Smith – No; Ms. LaPlante – yes; Ms. Mickey – yes; and Ms. Mitchell - yes.

Adams v. BZA: A petition for review of the BZA decision was filed with the Circuit Court.  The case is pending.

V-9931-05-Appeal: Appeal by James and Hilary Peoples, Owners, of the Zoning Administrator's denial of an Administrative Change request for a Special Exception Site Plan, re SP #355; 2022 N Monroe St.

BZA Minutes: After a duly advertised hearing, at which public testimony was given by James Downey, Attorney, and James R. Peoples, Appellant, and Eric Dobson, Nancy Iacomini, Anne Quinn, Gigi Peel, and Maureen Ross, President, Cherrydale Citizens Association, all speaking in favor of the Zoning Administrator’s determination, and there being no other speakers for this case, the Mr. Smith made the motion that the Board should take no action on the Appeal because the Board lacks the jurisdiction to do so. The motion was seconded by Mr. McGeary and passed by a vote of 5 to 0.

Peoples v. BZA:  A petition for review was filed with the Circuit Court.  The case is pending.

Table 1

Variance Cases: Month & Year

1990 through 2005

Table 2

Variance Cases: Average/Month 1990 through 2005

Table 3

Board of Zoning Appeals Actions on Requests for Variances

1995 through 2005

[1] By Sections and subsections of the Zoning Ordinance, some applications include two or more variance requests.

[2] As requested by the applicant.

[3] Applicant’s request for withdrawal granted by the BZA.

Table 4

Board of Zoning Appeals Requests by Zoning Ordinance Sections and Subsections

2000 through 2005

^* Includes variances for fences (32), resubdivisions (5), building height (11), driveway aprons (1) coverage over 56 percent (8), parking area encroaching on a setback  (7), parking space size and drive aisle width (2), oversized accessory structures (3), waiver of screening