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BZA Reverses Ballantrae Oaks Decision

BZA determines that I-495 does not meet the definition of a street for proposed residential development.

As a small business owner, McLean resident Bryan Judd understands the need and the desire to make a profit. What Judd cannot sympathize with is the willingness to make that profit at the expense of others.

"I believe this development as proposed will damage me economically," said Judd at a Fairfax County Board of Zoning Appeals (BZA) hearing last week. "It does not pass the sniff test."

On Dec. 6 the BZA held a hearing on zoning administrator William Shoup's ruling that I-495 meets the definition of a street as set forth in the Fairfax County Zoning Ordinance. Judd, who lives on Windy Hill Road, was one of several McLean residents who signed up for a 3-minute commentary slot at the meeting.

Shoup had made his ruling in reference to the Ballantrae Oaks residential subdivision proposal submitted by Rockville, Md. developer Williamson Group Construction, Inc., in August of this year. Last week the BZA voted unanimously to overturn Shoup's decision.

The proposal in question called for the construction of 19 residences on 27 acres of land located off of Scotts Run Road in McLean. However, as a good portion of the land is designated floodplain, opponents of the proposed subdivision said that the proposal was not as spacious as it sounded.

"19 residences are proposed to be constructed on 15 developable acres by creating these long Frankenstein lots," said Dulany Drive resident Trish Butler at last week's hearing.

"The Frankenstein lots" referred to by Butler are what would have been 1301, 1306, 1307 and 1315 Scotts Run Road in the Ballantrae Oaks subdivision. The abnormally shaped lots were each made up of two larger sections connected by long, thin strips of land. In the developer's submitted proposal, these four sites met the lot width requirements of the County's Zoning Ordinance by measuring front street line along the Capital Beltway.

The Zoning Ordinance defines a street as "a strip of land intended primarily for vehicular traffic and providing the principal means of access to property." As the Beltway would not actually be used to access the lots, Butler and many of her neighbors were angered by what they saw as an attempt by the developer to twist the language of the Zoning Ordinance in order to make more money.

"When I see this, citizens."aid Malcolm Butler, a resident of Hooking Road who also spoke at last week's hearing. "It's an agenda driven by an attempt to get higher density."

AT TUESDAY'S HEARING, Elizabeth Perry, a staff coordinator with the Fairfax County Office of Zoning Administration, was questioned extensively by the BZA about the definition of a street as outlined in the Zoning Ordinance. She argued that the Beltway falls within the Zoning Ordinance definition as it "is a principle arterial that provides access to the property."

"'Property' is a very general term," she added.

In addition, Perry argued that although in this case the backside of the property would run up against the Beltway, it could still be considered front street line.

"Front lot line is not always the same as front street line," she said.

BZA member Nancy Gibb asked whether the original intent of the Zoning Ordinance mattered at all.

"Do you ever go back to the rationale for your policy?" she asked. "To me it makes perfect sense in some cases, like when you have a house situated with one street on one side and another on the backside, but there is no way that you can use that rationale here because you can't use I-495 for anything."

Perry said that while "these are not lots that we would necessarily like to see approved," the rules of the Zoning Ordinance had to be applied in a consistent manner.

In his ruling on the Ballantrae Oaks proposal, Shoup stated that it was "a longstanding administrative practice" to allow interstate highways to be used for measuring lot width. Subsequently, BZA member Jim Hart asked for examples of similar cases that had set a precedent.

As it turned out, Shoup had ruled in 2003 that lots in the proposed Giles Glenn subdivision did not meet lot width requirements because a platted, unimproved right of way, or "paper street," was used for lot width but did not provide access to the lots.

"I cannot understand why what was illogical and unacceptable for Giles Glenn is permissible and acceptable for Ballantrae Oaks," said Trish Butler.

Adrienne Whyte, a McLean native and the immediate past chairman of the McLean Citizens Association planning and zoning committee, also spoke out against Shoup's contradictory rulings.

"What we appear to have here is not a longstanding administrative practice, but years of unchallenged error," said Whyte. "We have to consider the intentions of the Zoning Ordinance."

ONE BY ONE, POTENTIALLY AFFECTED RESIDENTS stated their concerns before the Board. Those concerns included fear of lowered property value, loss of the semi-rural character of the neighborhood and damage to the environmentally important floodplain.

"It's a stretch to call the proposed lots thru-lots, it's a stretch to refer to this as a 'longstanding administrative practice,' and it's a really long stretch to ignore the basic concept that the principle street line lies on the front of the lot," said Martin Smith, a resident of Windy Hill. "It's of no value to anyone — its only purpose is to provide a fig leaf of arcane logic to justify more development."

Annette Woodward, a resident of Dulany Dr., said that she was "very disappointed in the County."

"This is neither an orderly, nor a harmonious development," said Woodward.

Eric Kenney, the builder and landowner of the 27-acre parcel, also spoke at the hearing. Kenney said he "was a little confused as to some of the arguments" made by his disgruntled neighbors.

"Some of the issues they have brought up are not completely correct in nature," said Kenney.

He added that he had agreed to lower the density of the development at the request of the civic association – a gesture that he "was not required to do."

"This is a 27-acre parcel that can be broken down into 27 lots, but we have steered away from that," said Kenney. "We have taken this opportunity to go down to a 19-lot subdivision."

However, the BZA's decision to overturn Shoup's ruling was unanimous.

"As we approach buy-out in Fairfax County, the vacant sites that are left for development are increasingly difficult and constrained," said Hart. "The Beltway is not what is going to provide the principle means of access, and I think that it's a distortion of the definition outlined in the Zoning Ordinance ... that has been used to allow more homes to be built on an oddly configured site."

Hart added that nothing that was said at Tuesday's hearing had persuaded him to believe that allowing interstate highways to be used to measure lot width was "a longstanding administrative practice."

"Staff's position today is not consistent with the zoning administrator's opinion in 2003, or the Zoning Ordinance as a whole," said Hart.