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Challenging the BZA

McLean man questions neighbor’s garage height, size, in light of proposed amendments.

There has been a good deal of discussion among residents and community governing boards in the past few weeks, regarding a proposed zoning amendment to the county’s Planning Commission policies that could potentially make it easier for the Board of Zoning Appeals to grant variances to residents wanting to add on to their homes.

McLean resident Phil Gross went before the BZA last week to protest a project that was completed in 2004, a garage constructed on a neighbor’s property, which he feels does not comply with current regulations.

The home, owned by Reza and Deborah Rafi, is located at 7205 Matthew Mills Road, adjacent to Gross’ home, and already has one garage on the property. The Rafis hired a developer to build a second garage last year.

Lynne Stroble, the Rafis’ lawyer, told the BZA last week that the Rafis were seeking a variance to reduce the required setbacks and increase the height permitted for the building due to an error made by the builder during the building’s construction.

“There was a consent form signed in October by the Board to allow the request for a special permit,” Stroble told the BZA.

As the BZA viewed the building plans and paperwork for the additional building, some concerns arose as to what the building was considered.

“THE BUILDING PERMIT says this is a detached storage shed. Is that different from a garage?” asked Board member James Hart. The building had been referred to in previous documents as a garage for the storage of a classic vehicle. “If this is a building permit for a storage shed, the building can be a maximum of 200 square feet, but if it’s a garage, can’t the space be larger?” he asked.

After being told that yes, there is a difference between an accessory storage shed and a garage, Hart asked if the building requested in the permit was different from the one that had been built.

“We’ve had this problem in the past in reverse and can’t seem to get the problem cleared up,” said BZA member John Ribble. The wording of the permit documents is not as clear as it should be and can create confusion between both builders and those in the zoning department who grant variances and permits, he said.

“In November of 2002, the Rafis contracted with the builder for a one-story, accessory structure,” Stroble said. “The lot grading plan shows the building would have a maximum height of 8 feet with an interior size of 216 square feet. There is nothing misleading or false on the building plan.”

The Rafis contracted Capital Builders of Vienna to construct the building, and the contractor spoke with the zoning office several times to make sure the plans were correct and in compliance with all regulations and rules, she said. “The site itself was inspected on several occasions on suspicion of zoning violations, and the applicant did not appeal the zoning violations but did obtain legal counsel to have the miscommunication solved.”

NEIGHBORS CONTINUED to submit letters that a variance would be required for the building, which currently stands at 10.2-feet high and has an eave of 9.2 feet, which overhangs the side lot line, she said.

Stroble said that unless the errors made by the builder consist of a space greater than 10 percent of the overall space of the building, a special permit would be the “sole discretion” needed to solve the problem.

“The error was made in good faith of the homeowners,” she said. “The regulations would not defer the purpose or intent of the building. This structure does not create a safety hazard, and removal of the building would result in excess cost to the homeowners.”

Phil Gross, who lives at 7203 Matthew Mills Road, said he informed the county of various zoning problems early on in the construction of the building, and with the approval of the initial building permit, county officials gave authorization to a permit that was “null and void to begin with.”

“The application shows a side yard setback of 15 feet, and doesn’t mention that the height of the building is 15 feet,” he said. The actual side yard setback is around 8 feet. He said the permit, in order to be valid, would need a special use permit in addition to a variance, which the county would not grant.

The BZA decided to defer deciding on the issue for one week until Tuesday, Jan. 25. However, at the meeting Tuesday morning, the board voted to defer the decision again, this time for two weeks, to allow the board chairman, John DiGulian, and vice chairman Paul W. Hammack, who were absent from last week’s meeting, to review a videotape of the previous meeting before voting on the issue.

“It is quite clear from the application and permit that the building was stated to be a storage shed, and they built a garage,” Gross said after the meeting. “The building permit is false and misleading.”

He said the developer continued building the structure after being notified by the county of several zoning violations. “At a minimum, they (the builders) were negligent in continuing to build the building. You cannot obtain relief for negligent, self-inflicted errors,” he said.