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Votes

Council Member Cited

Ann Null and husband cited for alleged zoning ordinance violations.

Town Council member Ann Null and her husband have been given 30 days to cease or appeal an April 27 finding by the town zoning inspector that their property has four alleged zoning violations under the town's zoning ordinance.

According to Vincent Diem, deputy zoning administrator, after an April 26 inspection, the Null property was allegedly found in violation of "establishing a non-permitted 'transient-lodging business'; exceeding 'single-family dwelling' occupancy limitations and occupancy of a 'dwelling unit' by other than a 'family'; exceeding the number of permitted 'kitchens' in a single-family dwelling unit; and using an illegally non-conforming 'two-family dwelling' in an R-10 residential zoning district."

In accordance with the code of Virginia, the Nulls have the right to appeal the decision to the Board of Zoning Appeals within 30 days of receiving the letter citing the alleged findings.

They also have 30 days under the town's regulations to admit liability and remedy the situation before further legal actions or other enforcement measures are taken by the town.

"I'm not sure what I am going to do yet," said Ann Null about a possible appeal. "But the guests in the apartment will be moving out within the next 30 days."

IN HIS LETTER to Ann and Daniel Null, Diem said during his inspection of the property he found a studio apartment above the two car garage that was occupied by a married couple, unrelated to Null's family.

In notes from the inspection, Diem cites finding a kitchen complete with a microwave, refrigerator, stove/oven and a sink as well as a bathroom and sleeping area on the second floor of the garage.

According to the town's current zoning ordinance, "no dwelling unit may have more than one kitchen."

The ordinance also states that in residential districts a dwelling unit must be occupied by a family, based on the town's cited definition of family, with residential purposes as its principal use.

"Any occupancy by any other entity or person shall constitute a violation" of that chapter of the ordinance, according to the zoning ordinance.

IN RESPONSE to the alleged violations, Ann Null said because the current ordinance was recently amended and adopted in August 2004, she believes her property is grandfathered from the existing ordinance.

Robin Runser, town public information officer, confirmed that "the alleged violations in this case would have been covered under the old ordinance."

According to section 78-1355(b) of the old ordinance, "no dwelling unit may have more than one kitchen."

In addition, the updated ordinance goes on to cite almost verbatim the old ordinance.

Both codes state that the Town Council may, by conditional use permit, "allow a second kitchen in a single family dwelling, for use by occupants of the single family unit or the approved accessory dwelling."

As a member of council, Ann Null said it would be a conflict of interest for her to currently file for a conditional use permit.

She also said she hoped to defer any action pertaining to the alleged violations of a second dwelling unit until she was no longer on council.

Ann Null was elected to council last June, and has completed almost 11 months of a 24-month term.

According to Richard Kaufman, town attorney, the process for an alleged zoning violation case includes a 30-day appeal period for a resident to explain his or her case.

In addition, that same 30-day period is allotted to allow residents time to cease and remedy the alleged violations.

Kaufman said if residents do not comply within the time frame, further action is taken.

In the Null case, only civil penalties could be enforced if there was a lack of compliance, based on the alleged violations.

ALTHOUGH SHE SAT on the council that voted in August 2004 to amend the zoning ordinance to clarify and strengthen the occupancy limitations for residential units, Ann Null said she did not think her property was in violation.

"The intent of the amendment to the definition of family was to protect large families in small homes," she said. "The ordinance has nothing to do with small families in large homes."

During her 2004 campaign for Town Council, Ann Null was a critic of issues on overcrowding violations in town.

In addition, during her 11 months on council, she has voted in favor of increasing civil penalties for alleged overcrowding violations, she approved the August 2004 amendments to the zoning ordinance and has stated multiple times town officials need to do more to combat issues of overcrowding.

While on council she has suggested increasing community inspections and strengthening the town code, to eliminate recurring offenses.

AFTER HIS INSPECTION of the property, Diem cited the Nulls were renting — based on information provided by Ann Null — the studio apartment to a married couple.

"They haven't been here that long," said Ann Null about the one-year tenants. "They are U.S. citizens from Taiwan that are working toward their doctorates in Illinois."

She said the couple spends most of their time between California and Illinois.

"We're just helping friends out," she said, adding in regard to collecting rent payments, the couple was "helping out a little" with expenses.

According to the town's zoning ordinance, cited by Diem, it is illegal in town to have two families living on one dwelling unit lot in a residential zoning district, which is the district the Nulls are in.

According to the zoning ordinance, if residents consider building an accessory structure, like a studio apartment, they must apply for a conditional use permit before the Town Council.

Ann Null said when she and her husband bought the house at 631 Oak Street in 1991, the garage and studio apartment were already constructed.

According to Diem's letter, it is unclear when the apartment was constructed, saying the town does not "possess any records or indications of interior alterations having been made that would render the space located above the garage habitable as a dwelling unit."

In his notes, Diem cites additional cars registered to the Null property at the Oak Street address, not under the Nulls' names.

He adds another unrelated name came up registered to a car that had been reported on the property in 2002.

He cites, based on this information, "there appears to have been an unrelated occupant possibly residing above the garage or elsewhere on the property prior to the current tenants."

Null said they have had "full use of our full property" since they moved in.

ALTHOUGH INVOLVING A PUBLIC official, Runser said the alleged violations against Ann Null and her family are being given the same treatment as any other alleged overcrowding violation in town.

"Excessive occupancy investigations are prioritized based on reports that contain credible information," said Runser in an email. "This case involved credible information provided to the zoning staff by the Herndon Police."

Mayor Michael O'Reilly said although members of council were notified about the alleged violations as a courtesy, currently no action has been officially discussed at the council level.

"I don't believe we're going to get involved," said O'Reilly. "This is being treated like any other ongoing investigation of violations."

Kaufman said for all alleged overcrowding cases, if the option to appeal is waived, the resident is asked to immediately remedy the situation.

According to the town code if a kitchen or other uses are constructed without appropriate permits, the resident is asked to remove the items in question at their own cost.

Ann Null said according to town code there was no evidence for or against the garage being grandfathered into the current amended zoning ordinance.

"I am not sure what the town's desires are," she said about the possibility of removing the studio apartment.

Kaufman said after the 30-day period, residents must schedule a follow up appointment with community inspectors to review the property in question.

"The town always tries to resolve the issue before the issuance of penalties," said Kaufman, adding if a resident does not comply with requests, enforcement measures will be taken and civil penalties could be enforced.

He added currently, the town attorney's office is "not involved in the [Null] case in terms of enforcement."