To Grant a Variance or Not To Grant?

To Grant a Variance or Not To Grant?

McLean Citizens Association supports the Chesapeake Ordinance but worries about a proposed zoning amendment.

At the McLean Citizens Association meeting last Wednesday, the big topic was land. The board learned that a proposal to turn part of a protected riverbed into a dry pond for storm-water management had been denied, as the board had hoped, while a possible zoning change was discussed that could alter the look of the entire county.

“As many of you might be aware, there’s a 25.5-acre farm on Spring Hill Road, from Lewinsville Road, that was purchased to be connected into a residential [development] deal,” said Frank Crandall, the board’s Environment, Parks and Recreation appointee to the county. “The back part of the land lies along a stream bed that’s been protected as a resource protection area [RPA], as defined in the Chesapeake Bay Protection Ordinance,” he said.

The ordinance says that no development or alterations can be made to land within 100 feet of any river or streambed, he said.

“The developer of Spring Hill Farm immediately looked into the idea of a cluster development, but it didn’t work because of the county’s requirements,” Crandall told the board. The developer had submitted an application to get an exception to the law that would allow for the construction of the dry pond, possibly compromising the streambed.

He said the MCA had “mobilized efforts” to prevent the exception’s being passed, and their work paid off.

“This established that people can’t come in as an exemption around the whole Chesapeake Bay Ordinance,” he said. “Our community did this on behalf of the county.”

“This was excellent work on short notice by Frank and the Parks and Environment Committee,” said Susan Turner, MCA president.

HOWEVER, NOT all news was as optimistic and promising as the Spring Hill Farm outcome.

“There’s a proposed amendment to the county’s zoning ordinance that’s supposed to be heard by the Planning Committee in a week and then go to the Board of Supervisors on [Jan.] 23, and if the Board of Supervisors passes it, the amendment would go into effect at midnight on the next day,” said board member Dale Murad.

Last year, the Virginia state Supreme Court heard the case of Cochran vs. Fairfax Planning Board, which stated that the Board of Zoning Appeals could only approve zoning variances under an approved use list they drafted, Murad said.

“It looks like the BZA’s power to grant variances is limited, and in order to get greater authority to approve variances, they’re trying to turn variances into special exemptions,” he said.

Resident Wally Sansone told the board he’d accidentally learned of a proposed amendment to the county’s zoning ordinance that could, if passed, allow for easier approval to zoning variances, turning what used to be difficult to obtain exceptions into the standard procedure.

“The variances had specific legal standards and, in my point of view, this amendment could lead to the rezoning of Fairfax County,” Sansone said.

“It would be possible for anyone to get a special permit for the $190 filing fee to do whatever they wanted to do with their property.”

The amendment would allow property owners to reduce any yard setback by up to 50 percent, he said.

“In addition, this document [available on the county’s Web site], is difficult to understand,” he said. “We’re here to ask you to take the time to look at this proposed amendment. You will be shocked at the short amount of time for citizens to look at it.”

“THESE PEOPLE ARE trying the change the law by the light of the moon,” Sansone said. “This would have a great impact on the county with no standards at all.”

He asked the board to draft a statement against the proposed amendment on behalf of the citizens, requesting more time to allow the residents of the county to read and understand the amendment before it goes into effect.

“When I tried to work on my home this summer, I had to get a variance, and I was told I couldn’t get one,” said board member Steve Keller. “Having read the [Cochran] case, that decision should be applauded. I think this is the county’s answer to get variances through.”

“It does create a special process, but there are only four criteria listed,” said board member Mike Clancy. “Aren’t they trying to protect the discretion of the owner?” he asked Sansone.

“No, the hardship standard is the higher standard to which the variance can be measured,” Sansone said. “I think citizens need to be protected by the law, and the wording of this amendment is very vague.”

“I think there’s every possibility that they [the Planning Committee] might not make a decision on this amendment that night,” said Rosemary Ryan, Dranesville District supervisor Joan DuBois’ legislative aide. “The committee could very well not make a decision but request information instead. Everyone wants this issue to be put on the table for discussion, they want to get it out and create a dialogue.”

THE BIGGEST CONCERN for the MCA was variances that would allow for another residence to be built on a particular property, said board member Adrienne Whyte. “It’s an interesting thing to watch a BZA hearing in Fairfax County and then go to one in Arlington or Falls Church. They continue to grant requests when they feel all requirements are met, which says to me our BZA find themselves with nothing to do,” she said.

She suggested that a better way to get this amendment passed would be to hold a series of public workshops to allow residents to discuss their concerns with the Planning Committee, so all concerned parties could be understood.

“The Planning Committee could decided to vote on it as well, so it’s really a roll of the dice that night,” said board member Wade Smith. “Sometimes on these kinds of special variances, the county takes the perspective that the person who opposes the variance needs to show why they’re opposed to the variance, not the other way around. There’s a lot of danger in this proposal,” he said.

The board approved a motion to authorize a resolution requesting a delay of acting on the proposed amendment for 90 days to allow for public input.