Letter and document received from the Mclean Citizen's Association
Note: All emphasis, bolding, underlining, etc. in the following letter and background article was included on the original email from the McLean Citizen's Association. Inclusion on this website does not imply that either the Leewood Homeowners Association or the webmaster concur with the conclusions drawn. In fact, this seems like an excellent starting point for a discussion on our message board so we can hammer out exactly what this proposed amendment is saying and our position on the subject.
You might wish to go directly to the referenced documents to serve as background in reading these citizen's concerns.
They are:
www.fairfaxcounty.gov/dpz/zoningordinance/amendments/vcspse.pdf This contains the Staff Report, the drafted final ordinance and other attachments.
For more background regarding the ZOA: www.fairfaxcounty.gov/dpz/projects/minyard.htm
(Note: These pages have been removed from Fairfax's web site)
An open letter to Fairfax County Citizens
on the impact of a new proposed Fairfax Zoning Ordinance
Dear Friends,
We are sending this directly to you because of the severe time constraints and urgent nature of a pending Fairfax Zoning Ordinance Amendment (the ZOA). Please pass it along to your friends, associates and interested organizations to make them aware of the major negative imminent change in our zoning laws.
The Fairfax Planning Commission and the Board of Supervisors are on a fast track to change the Zoning Ordinance and it will have enormous ramifications throughout the County. On February 7th the Board could establish a new Special Permit process that would give the the Board of Zoning Appeals (BZA) the authority to effectively rezone Fairfax County at their discretion with little (if any ) redress by its citizens.
A Public Information Session is scheduled on the ZOA for Monday, Jan 31 at 7:00PM in Conference Room 4 of the Government Center, 12000 Government Center Parkway, Fairfax. Unfortunately only 2 days later, the Planning Commission Hearing is scheduled on Feb 2nd at 8:15. If passed, the Board will vote on it Feb 7th at a time to be determined. Both the Planning Commission and the Board's Hearings, as well as the Information Session have provisions for public comment and we encourage everyone to give their concerns.
Recently, the McLean Citizens Association and other citizens associations, unanimously passed a resolution to request that the Planning Commission and the Board defer a vote for 90 days to allow further study and a workshop on the proposed amendments. Surely a 90-day delay to ensure citizens an opportunity to understand and respond to this far-reaching amendment is appropriate.
Please act now to delay the vote on the ZOA for at least 90 days. Contact your Supervisors and the Planning Commission to request this reasonable delay. Adequate time needs to be given to inform citizens of their potential loss of property rights, due process and quality of life issues and afford them a fair opportunity to fully participate in the process.
Please feel free to forward this information to all interested parties. A background paper below contains additional details and Email addresses for the Board and the PC at end of this message.
Thank you very much for your support.
Sincerely,
Susan Turner
President, McLean Citizens Association
FAIRFAX COUNTY ZONING ORDINANCE AMENDMENT (the ZOA)
In brief, the Board of Supervisors (the Board) is expected adopt the ZOA which has the potential to create a hodgepodge of building and "effectively rezone" the entire County. This is accomplished in the ZOA by creating a new Special Permit (SP) process instead of the current Variance process and lowering the bar on the required standards for approval of a SP. The new standards are so unsubstantial and vague that almost anything could be approved at their neighbor's and the entire county's expense. Furthermore, the basis of appeal to a higher level, in the interest of justice, will be extremely difficult because the new standards have been set in such ambiguous and uncertain language.
In way of background, the Supreme Court of Virginia in 2004 reaffirmed that current law permits a variance to be issued only when the law unreasonably restricts the utilization of the subject property or, it will alleviate a clearly demonstrable hardship. The seminal case on variances in Virginia dates from a 1980 Virginia Supreme Court Case ( Packer v. Hornsby) which the Court reaffirmed in the Cochran Decision of 2004. After the Court's reaffirmation of Virginia Law, the Fairfax County Board of Zoning Appeals (the BZA) refused to issue even limited and unchallenged variances as they had been doing since the first Supreme Court Decision in 1980.
When the Fairfax BZA refused to act they asked the Board for "flexibility". The result is the new ZOA which according to the Staff Report notes ( which is on line by opening the references below) "... the BOS determined that is was in the County's best interest to allow some limited flexibility". However, concerned citizens fear the ZOA is far too "flexible' and unbalanced in favor of the applicant, while the rights of the majority of other citizens guaranteed under law have been effectively eliminated. What was formerly called a variance is now called a SP. In order to qualify for a SP the ZOA simply requires that the BZA determine ... "that the resultant development on the site is harmonious with surrounding development, and does not adversely impact the use and/or enjoyment of any adjacent property" . There are other similarly very subjective words which allow the BZA to award an SP almost without restriction, as compared to the long standing, tested, and well understood legal requirements for a variance to be granted.
There are indications that many developers and builders are aware of the new SP process and will be lining up to exploit it everywhere in Fairfax. Imagine what any development will look like if developers decide to take advantage of the new SP process. The new zoning will allow modifications of certain yard requirements by up to 50%. As an example, in a neighborhood with side yards of 15 feet, they could be reduced up to 7.5 feet on each side by SP. Front yards of 35 feet and backyards of 25 feet also could be cut in half. Additionally, the ZOA includes new authority for the BZA to approve a modification of the minimum yard requirements for certain existing structures and uses, and a modification of the 10 foot minimum distance between off-street parking spaces and the front lot line. All this being subject of some very vague, ambiguous and somewhat unintelligible language to be interpreted by the BZA.
The Staff Report notes that "... with the less restrictive standards for the proposed Special Permit, it is expected that there will be an increase in the number of applications filed". This may result in thousands of new SPs each year. Additionally, no mention is made in the Staff Report regarding what course of action the more than one hundred other Counties and independent cities in Virginia are taking or planning to take. However, we have not been able to find a single county in Virgina that has stopped granting variances. In other words, only the Fairfax BZA seems to have fabricated a "self inflicted" problem to gain more power.
Pusuant to the Board's fast track, the new ZOA will become effective on Feb 8th. Unfortunately, Public Notice by the County of this important ZOA was limited. There is not much time and it is extremely important that all citizens understand its full impact. It is clear, that many people and groups of concerned citizens are not aware of the far-reaching negative impact that the ZOA will have.
In Summary, Concerned Fairfax Citizens who are aware of the ZOA believe that amending the law to accommodate variances under the new ZOA, and Special Permit (SP) process can amount to “rezoning” the entire County. The SP process is a clear circumvention of the zoning laws of VA. Sadly, protections afforded citizens by the current Variance process have been removed by little more than a simple name change and by lowering the standards.
Please act now to delay the vote. Ask everyone to take the time to make public comment and email the Planning Commission and Board of Supervisors expressing your support for a reasonable extension of at least 90 days to consider this important Zoning Law before it is adopted
To contact your Board of Supervisors and the Fairfax Planning Commission log on:
www.co.fairfax.va.us/government
From here you can access the Board of Supervisors on each of their Constituent Feedback Lines.
You can reach Chairman At-Large Gerry Connolly at: www.chairman@fairfaxcounty.gov
You can contact the Planning Commission at: www.plancom@fairfaxcounty.gov
For more background regarding the ZOA: www.fairfaxcounty.gov/dpz/projects/minyard.htm From here you can also access the Planning Commissions website.
www.fairfaxcounty.gov/dpz/zoningordinance/amendments/vcspse.pdf This contains the Staff Report, the drafted final ordinance and other attachments.
