Law vs. Preservation of Watershed

Law vs. Preservation of Watershed

Church Can Legally Build There, But Should It?

Greenbriar's Suzie Koehne can't build on environmentally sensitive land she owns in Clifton. But Fairfax County is permitting a large church to be constructed on similar property nearby.

The county Board of Zoning Appeals (BZA) and a Circuit Court judge both said everything is legal and gave the church their blessing to proceed. But just because the church can build there, doesn't mean it should and doesn't make it right, contends Koehne.

"It'll hurt the Occoquan Watershed," she says. "If everybody else has to meet certain requirements and standards, then what happened here?"

Koehne owns nearly six acres along Doyle Road in Clifton, across from the Hampton Chase subdivision off Braddock Road. Full of trees and streams, her land is in the downzoned area of the Occoquan Watershed, and the Johnny Moore Creek runs through her property.

Ironically, the county Board of Supervisors just celebrated the 20th anniversary of the Occoquan Downzoning — which protected some 40,000 acres in western Fairfax County from intense development that would have jeopardized water quality because of stormwater runoff.

But in this instance, said Koehne, looking out for the Occoquan seems to have been forgotten. "There just doesn't seem to be the protection there that we thought there was," she said.

She bought her land in 1966 and was initially grandfathered in so she could build on it. But the grandfathering eventually disappeared. "We can't build on it because the land won't perk," she said. "And the county won't put in water and sewer there because it would [adversely] affect the Occoquan Watershed."

But she's not as upset about that as she is about the fact that the Vienna-based King's Chapel plans to build right nearby. In early November, Koehne got a letter from engineers doing site work for the church, requesting an easement from her property for the church site's stormwater runoff.

"My property does have a tendency to flood and, if I gave them an easement, it would make my flooding worse," she explained. "So they got an easement elsewhere, but it still affects my property because it's downhill from the church site. And I was concerned that it would affect the watershed."

THE CASE WENT BEFORE THE BZA on Dec. 3, and the church got the go-ahead to obtain the special-use permit it needed to build here. Unlike Koehne's land, the church property fronts on Braddock and is therefore within 400 feet of public water and sewer.

Furious with the BZA's decision, Koehne says that, besides the church, it'll also result in a huge (about 200-space), impervious parking lot in the watershed. "It shows that the BZA can operate anyway it wants to, at its whim," she said. "They talk about protecting the watershed — if the county doesn't care, then why should I?"

But Jim Hart, an at-large member of the BZA, says that body has done no wrong. "Under the [county] zoning ordinance, the Board of Supervisors has authorized approximately two dozen different, nonresidential uses in the downzoned area — so long as the use is located on an arterial roadway and certain other criteria are met," he said. "Churches are one of those uses."

Braddock is an arterial roadway and, said Hart, many churches are on downzoned sites on land zoned RC (residential conservation), as is the land in the Occoquan Watershed. Besides Braddock, these churches and other approved uses may be found along arterial roadways such as Routes 123 and 29 and Shirley Gate Road.

"County staff recommended approval [of the King's Chapel application] and said it wouldn't adversely affect the watershed," said Hart. "There were numerous development conditions recommended by staff, and we added to them."

He said there's often a misconception that nothing can occur in the downzoned area. But in reality, "along arterial roadways, institutional uses such as churches are becoming the development pattern. They're expressly allowed [there] by special permit or special exception." Calling it a "routine" occurrence, Hart said, "There's nothing extraordinary about a church applying for a special permit in the Occoquan."

Attorney John McBride, who represented King's Chapel before the BZA and later in court, said the church currently leases space in Vienna and needs a new home because of its growing congregation. It chose this 10-acre spot in Clifton because of its location and proximity to Braddock Road and the Fairfax County Parkway.

"Many of the members live in western Fairfax County," said McBride. "You want a church along a four-lane, divided road — not tucked away [where people can't find it]. It's a beautiful piece of land, and they're saving quite a large number of trees. And we have 23 development conditions, above and beyond the normal restrictions, because it is in the Occoquan."

THESE CONDITIONS IMPOSE CERTAIN LIMITATIONS. For example, 50 percent of the site must be left as undisturbed open space and, said McBride, "[county] staff had us redesign the church layout to be more sensitive to the environment. On behalf of the church, we're pleased [with the rulings in its favor]. Hopefully, by next spring, it should be under construction."

But attorney and environmental scientist David Schnare, who represented Koehne, is also angered at the legal decisions and says there are other, equally important issues at stake here, and they should be considered. He's upset at both the BZA and the court and the way they acted in this case.

Noting that the BZA is court-appointed and authorized by the state legislature, he said the BZA relieves the courts and Board of Supervisors from dealing with some appeals. But in this instance, he wanted the judge, Randy Bellows, to require the BZA to give a detailed explanation of why it OKed the church's application. With some other cases, he said, the court has done so, but not this time.

"The judge said the BZA, in essence, can do whatever it wants for good reason, bad reason or no reason, at all — as long as it decides [the matter] is in conformance with the Comprehensive Plan and the zoning ordinance," said Schnare. "If they make a bad decision, there's no way to check them."

In Koehne's case, he said, "The BZA followed the letter of the law — but not the spirit — and may have damaged it. The court said it wouldn't look further inside the BZA decision. The court's decision eviscerated the RC District ordinance — a residential conservation ordinance to protect the natural resources in the RC and minimize the amount of impervious surface."

BASICALLY, SAID SCHNARE, "The court said, 'I don't care whether the BZA looks at that.' [The judge] ignored what anyone said, except that the BZA said it complies." He said the church plans to pave almost five of its 10 acres and, when that much land is paved, water has no place to go. And he questioned why churches are allowed to be built all along the edge of the watershed.

"You can put churches there, but you have to be more [environmentally] sensitive than these people were," he said. "The footprint of that church is half the size of the National Cathedral — it's not a small, country church."

At the BZA hearing, Koehne's sister Debbie Rood, read comments from an architect and planner Ronald Hubbard, who lives on Doyle Road, and from Cliff Fairweather of the Audubon Naturalist Society. Hubbard noted the heavy concentration of 100-plus year-old trees along Doyle Road, as well as deer, wild turkeys and red foxes.

He said the project is right on a deer crossing and "would be the start of a downward spiral of our ecosystem in Braddock Woods." He stressed that large amounts of clay there make it "nearly impossible" for that land to absorb water, and the project, itself, "is not conducive to the intent of the RC zoning protecting the surrounding watershed."

Fairweather said the Audubon Society is "seriously concerned about [its] potential impact on water quality in Johnny Moore Creek" and believes "this is an inappropriate land use." And in his role as chairman of the Occoquan Watershed Coalition's (OWC) Environment and Land Use Committee, Schnare submitted a letter to the BZA explaining why paving the headwaters of Johnny Moore Creek would be so detrimental.

"In case after case, significant disturbance of headwaters areas has resulted in serious stream degradation," wrote Fairweather. Where the church wants to build, said Schnare, is "at the headwaters of all the streams on the watershed — including the cleanest, most pristine creek in Fairfax County — Johnny Moore. Headwater areas are the most fragile parts of any watershed — special ecological areas with marshes, wildlife and birds."

HE SAID IT WOULD HARM THE ENVIRONMENT LESS if the church built a small, permeable parking lot and erected a sanctuary rising upward, instead of spreading outward. And he believes that the RC district ordinance should say that "the BZA should not approve an application unless it's in harmony with each of the elements of that ordinance's purpose and intents statement."

Schnare said this case has "sufficient merit" for an appeal, but he doesn't know whether it'll happen. What he does know, he said, is that "this ordinance that everyone was so proud of has no teeth. Now, neither the court nor the citizens can control the BZA."

However, in a memo filed April 24 in Circuit Court, before the case was heard, county attorney Cynthia Bailey wrote that "the BZA properly considered the standards that guide its legislative decision-making." She also contended that Koehne "introduced a level of detail where none is required" and that "the record, as a whole, fully supports the BZA's decision." Bailey wrote that there's "no credence to Koehne's claim that the BZA failed to protect stream water quality, forest cover and open rural areas."

Furthermore, she concluded, "The BZA hears literally hundreds of appeals, variance requests and special permit applications over the course of a year. Koehne's argument that the BZA must make specific, detailed, factual findings, reconcile conflicting evidence on the record, and delve into 'requirements' concocted by fertile imaginations is not only absurd, but would render the BZA's function all but impossible."

In his official opinion written May 22, Judge Bellows wrote that the BZA's action was "neither arbitrary nor capricious." And, he said, Koehne "failed to present persuasive evidence" that the BZA acted unreasonably in approving the church's special-use permit.