The Town Council was scheduled to discuss, during a work session Tuesday, the possibility of filing a suit against the owners of a home on Archer Court for allegedly violating the town's over occupancy laws.
For the council, this case represents a growing problem throughout the town.
Since last September there have been 156 complaints received by the town regarding over occupancy, said Lisa Gilleran, the town's zoning administrator. Of those, 90 cases have been closed, meaning there either was no violation or the violation has been resolved. The remaining 66 cases, Gilleran said, are still open.
"It's a major issue. Over occupancy is a problem we're having in our older neighborhoods," said Carol Bruce, Herndon's vice mayor. "I have seen cases where people buy houses and rent square footage on the floor."
THERE ARE TWO CODES at work when it comes to determining if a house is over occupied. Under the zoning code, said Richard Kaufman, the town's attorney, no more than four unrelated people can live in a dwelling unit. In addition, he said, the building code specifies a minimum square footage per person. The Virginia Uniform Statewide Building Code standard requires a bedroom or sleeping area have at least 70 square feet if occupied by one person. That figure drops to 50 square feet per person if one or more people regularly occupy the space. In addition, the space must have privacy, adequate lighting and ventilation, and two access points, one of which leads directly outside. Violations of the zoning code, known as the so-called "family rule," have civil penalties, while violations of the building code carry criminal penalties Kaufman said.
"The two do work together," Kaufman said. "There could be a violation of both at the same time."
The town begins an investigation when it receives a complaint, most likely from a neighbor.
"If you are living next door to one of the units and have to live with it every day, it is a big problem," Gilleran said. "Often the reason we get a complaint is not because of how many people live there, but the exterior manifestation. If a house has two adults and four children, we won't get a call. But, if a house has six adults, we will get a call because they have six cars and are impacting others."
If it is determined there is a violation, often times it can be resolved at an administrative level, by sending letters notifying the owners of the violation. Kaufman said, his office gets involved when all other means to resolve the problem fail.
"The town pursues these cases frequently and many, many times," Kaufman said. "We have several cases we're working."
"WE HAVE HAD TWO or three documented incidents," said George Burke, president of the Courts of Chandon Homeowners Association, which has a mix of townhouses and single-family homes. "The problems are largely environmental."
Often times in the case of over occupancy, the neighborhood feels the effects in the amount of trash the house generates, the lack of available parking, the noise and, in a small way, with child-care issues, Burke said.
"It affects everybody," Burke said.
The association notifies the town of any suspicions of an over occupancy incident and does not take any action directly. It will, however, address secondary issues caused by the situation such as using guest parking spaces, Burke said.
"There is nothing in our bylaws that enable us to act," Burke said. "My experience is that the town is very cooperative with working on this. I've never been stonewalled in anyway."
Gilleran said the town has recognized there is a growing problem and one of the resulting actions was to provide for an additional community inspector in the last budget, rising the total to two.
"We're still working on it," Gilleran said. "We're trying to find new and better ways to preserve our older neighborhoods."
ANOTHER STEP the town is taking is raising the civil and criminal fines for zoning violations; making illegal boarding houses a criminal violation rather than a civil violation as it currently is; and increasing the civil penalties for additional violations.
Among the changes under the proposal, which is slated for a public hearing before the Planning Commission Sept. 8, the civil penalty for a first offense would be raised to $100 with each additional summons costing $250.
"I'm not sure how critical a problem over occupancy is … but I see no reason why it won't continue to become a problem," Burke said. "The issue is real estate prices. I don't think people want to live in a house with six to eight other people. The troubling part is people buying houses for the sole purpose of subdividing the space to rent."