Massive home addition causes confusion in Fairfax County neighborhood

[Anonymous]

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

A special permit would not be my first choice. It gives the zoning board too much discretion:

(c) The proposed use, including its design and operational characteristics, must not adversely
affect the use or future development of neighboring properties and must be in accordance
with the applicable zoning district regulations. The location, size and height of buildings,
structures, walls, and fences, as well as the nature and extent of screening, buffering and
landscaping cannot hinder or discourage the appropriate development and use, or impair the
value of, adjacent or nearby land or buildings.

"Proposed use" refers to the modification they're seeking- in this case, a small reduction in the setback requirements.

But you're right, it does give them a lot of discretion. This is not a path someone is going to want go down. Which is why the claimed concerns about encouraging mistakes or fraud are absurd. The cost and disruption involved is already more than enough to heavily discourage this.

You just build in a three month delay to your schedule. You know the county is going to stop you at some point for three months to review the permit, but you also know that the county will always issue because it's "too expensive" to fix if you get far enough along. It becomes speeding ticket.

[Anonymous]

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

The person who thinks the homeowner should apply for a special permit has been asked several times for the reasons they think this situation fits into a special permit request rather than a variance.

As a non-lawyer, when I read the Fairfax County zoning website, it appears that this situation should be handled by a variance application because of the dimensional quality of the issue here. The site specifically says that issues that involve dimensions need a variance. It seems that a wall intruding almost six inches into the setback very clearly involves a question of the dimensions involved.

The person filing for relief picks the relief they want to seek. They want a reduction in the setback requirement. That is very clearly in the list of items that can be addressed through a special permit:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2583#secid-2583

I really don't understand why think "Reduction of Required Setbacks" doesn't apply here.

Thank you for your detailed response. One poster was asked this question several times and only gave vague answers.

It does look as though either route would work. The county is likely to give the request a thorough review, whether the homeowner files for a special permit or a variance.

I would avoid anything that let the county consider anything other than the setback. Special permits also mention the "Comprehensive Plan" and it's broad enough that it can be applied either way to this issue. Make the county decide on the single issue of the setback.

Why do I doubt the authenticity of your post?

The homeowner has hired people for this issue. He's not going to be coming to dcum for legal advice. There's no point to trying to misdirect him here.

His lawyer is absolutely going to tell him to go the special permit route. You obviously know that. And while it isn't a given that it will be granted, you are misrepresenting how their decision will be scoped.

[Anonymous]

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

A special permit would not be my first choice. It gives the zoning board too much discretion:

(c) The proposed use, including its design and operational characteristics, must not adversely
affect the use or future development of neighboring properties and must be in accordance
with the applicable zoning district regulations. The location, size and height of buildings,
structures, walls, and fences, as well as the nature and extent of screening, buffering and
landscaping cannot hinder or discourage the appropriate development and use, or impair the
value of, adjacent or nearby land or buildings.

"Proposed use" refers to the modification they're seeking- in this case, a small reduction in the setback requirements.

But you're right, it does give them a lot of discretion. This is not a path someone is going to want go down. Which is why the claimed concerns about encouraging mistakes or fraud are absurd. The cost and disruption involved is already more than enough to heavily discourage this.

You just build in a three month delay to your schedule. You know the county is going to stop you at some point for three months to review the permit, but you also know that the county will always issue because it's "too expensive" to fix if you get far enough along. It becomes speeding ticket.

So you need to come up with a small enough issue that it doesn't meaningfully impact your neighbors, but it has a significant enough benefit for you that you'll accept the delay, risk, and cost?

That's a stretch, to say the least.

[Anonymous]

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

The person who thinks the homeowner should apply for a special permit has been asked several times for the reasons they think this situation fits into a special permit request rather than a variance.

As a non-lawyer, when I read the Fairfax County zoning website, it appears that this situation should be handled by a variance application because of the dimensional quality of the issue here. The site specifically says that issues that involve dimensions need a variance. It seems that a wall intruding almost six inches into the setback very clearly involves a question of the dimensions involved.

The person filing for relief picks the relief they want to seek. They want a reduction in the setback requirement. That is very clearly in the list of items that can be addressed through a special permit:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2583#secid-2583

I really don't understand why think "Reduction of Required Setbacks" doesn't apply here.

Thank you for your detailed response. One poster was asked this question several times and only gave vague answers.

It does look as though either route would work. The county is likely to give the request a thorough review, whether the homeowner files for a special permit or a variance.

I would avoid anything that let the county consider anything other than the setback. Special permits also mention the "Comprehensive Plan" and it's broad enough that it can be applied either way to this issue. Make the county decide on the single issue of the setback.

Why do I doubt the authenticity of your post?

The homeowner has hired people for this issue. He's not going to be coming to dcum for legal advice. There's no point to trying to misdirect him here.

His lawyer is absolutely going to tell him to go the special permit route. You obviously know that. And while it isn't a given that it will be granted, you are misrepresenting how their decision will be scoped.

What's my motivation to lie?

You don't want to let the county start considering things outside of the single setback issue. The Comprehensive Plan is pro-housong but also pro-preservation of existing character.

[Anonymous]

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

The person who thinks the homeowner should apply for a special permit has been asked several times for the reasons they think this situation fits into a special permit request rather than a variance.

As a non-lawyer, when I read the Fairfax County zoning website, it appears that this situation should be handled by a variance application because of the dimensional quality of the issue here. The site specifically says that issues that involve dimensions need a variance. It seems that a wall intruding almost six inches into the setback very clearly involves a question of the dimensions involved.

The person filing for relief picks the relief they want to seek. They want a reduction in the setback requirement. That is very clearly in the list of items that can be addressed through a special permit:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2583#secid-2583

I really don't understand why think "Reduction of Required Setbacks" doesn't apply here.

Thank you for your detailed response. One poster was asked this question several times and only gave vague answers.

It does look as though either route would work. The county is likely to give the request a thorough review, whether the homeowner files for a special permit or a variance.

I would avoid anything that let the county consider anything other than the setback. Special permits also mention the "Comprehensive Plan" and it's broad enough that it can be applied either way to this issue. Make the county decide on the single issue of the setback.

Why do I doubt the authenticity of your post?

The homeowner has hired people for this issue. He's not going to be coming to dcum for legal advice. There's no point to trying to misdirect him here.

His lawyer is absolutely going to tell him to go the special permit route. You obviously know that. And while it isn't a given that it will be granted, you are misrepresenting how their decision will be scoped.

What's my motivation to lie?

You don't want to let the county start considering things outside of the single setback issue. The Comprehensive Plan is pro-housong but also pro-preservation of existing character.

Your writing style suggests you're the same poster that has repeated the problems with variances over and over again. You know the special permit is a better path.

Just like you know the permit is evaluated for the modification it seeks. The Comprehensive Plan does not speak to a 8 foot versus 7.5 foot setback. You're suggesting they can make it about the design and height of the structure, despite them already being aligned with the requirements of that zone, but that's not how the law is written.

I don't know what your motivations are here, but they're weird.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

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Anonymous wrote:

Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

The person who thinks the homeowner should apply for a special permit has been asked several times for the reasons they think this situation fits into a special permit request rather than a variance.

As a non-lawyer, when I read the Fairfax County zoning website, it appears that this situation should be handled by a variance application because of the dimensional quality of the issue here. The site specifically says that issues that involve dimensions need a variance. It seems that a wall intruding almost six inches into the setback very clearly involves a question of the dimensions involved.

The person filing for relief picks the relief they want to seek. They want a reduction in the setback requirement. That is very clearly in the list of items that can be addressed through a special permit:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2583#secid-2583

I really don't understand why think "Reduction of Required Setbacks" doesn't apply here.

Thank you for your detailed response. One poster was asked this question several times and only gave vague answers.

It does look as though either route would work. The county is likely to give the request a thorough review, whether the homeowner files for a special permit or a variance.

I would avoid anything that let the county consider anything other than the setback. Special permits also mention the "Comprehensive Plan" and it's broad enough that it can be applied either way to this issue. Make the county decide on the single issue of the setback.

Why do I doubt the authenticity of your post?

The homeowner has hired people for this issue. He's not going to be coming to dcum for legal advice. There's no point to trying to misdirect him here.

His lawyer is absolutely going to tell him to go the special permit route. You obviously know that. And while it isn't a given that it will be granted, you are misrepresenting how their decision will be scoped.

What's my motivation to lie?

You don't want to let the county start considering things outside of the single setback issue. The Comprehensive Plan is pro-housong but also pro-preservation of existing character.

Your writing style suggests you're the same poster that has repeated the problems with variances over and over again. You know the special permit is a better path.

Just like you know the permit is evaluated for the modification it seeks. The Comprehensive Plan does not speak to a 8 foot versus 7.5 foot setback. You're suggesting they can make it about the design and height of the structure, despite them already being aligned with the requirements of that zone, but that's not how the law is written.

I don't know what your motivations are here, but they're weird.

Just so you know, there are at least two people posting about the variance v special permit issue. Maybe more, it’s hard to tell when the posts are anonymous.

[Anonymous]

What would happen if the homeowner were to choose to file one type of application, say for a special permit, but the board finds that a different type of application would be more appropriate? Can the board send it back to the homeowner saying, sorry you’ll need to re-file with a different application?

Can the homeowner go to the board in advance and ask for clarification on what type of request is most appropriate for a particular situation?

[Anonymous]

Anonymous wrote:What would happen if the homeowner were to choose to file one type of application, say for a special permit, but the board finds that a different type of application would be more appropriate? Can the board send it back to the homeowner saying, sorry you’ll need to re-file with a different application?

Can the homeowner go to the board in advance and ask for clarification on what type of request is most appropriate for a particular situation?

I'm in an adjacent county and yes. We were able to talk directly with knowledgeable people about what permits needed pulled and what we needed to do. We were doing our own basement renovation. At every step of the way, they inspected before we moved on to the next step. We had so many permits. It appears the homeowner didn't do any of this though.

[Anonymous]

Anonymous wrote:What would happen if the homeowner were to choose to file one type of application, say for a special permit, but the board finds that a different type of application would be more appropriate? Can the board send it back to the homeowner saying, sorry you’ll need to re-file with a different application?

Can the homeowner go to the board in advance and ask for clarification on what type of request is most appropriate for a particular situation?

It doesn't matter what is "most appropriate." There's no obvious or clear notion of "most appropriate" in this context. What matters is whether, for the vehicle you choose, you: 1) are seeking relief authorized in law for that vehicle, and 2) can demonstrate the required elements for that relief.

A homeowner is naturally going to choose whatever applicable vehicle gives them the strongest case when arguing (2).

The county staff are generally probably happy to help people down the best route, but they're not ultimately watching out for your interests.

This is definitely where I'd want help from a lawyer.

fwiw, filing for a special permit doesn't bar you from later filing for a variance (and vice versa). But they are ultimately decided by the same body. I doubt it happens much, though. At least, not without changing the plan and relief between requests.

[Anonymous]

Anonymous wrote:

Anonymous wrote:What would happen if the homeowner were to choose to file one type of application, say for a special permit, but the board finds that a different type of application would be more appropriate? Can the board send it back to the homeowner saying, sorry you’ll need to re-file with a different application?

Can the homeowner go to the board in advance and ask for clarification on what type of request is most appropriate for a particular situation?

I'm in an adjacent county and yes. We were able to talk directly with knowledgeable people about what permits needed pulled and what we needed to do. We were doing our own basement renovation. At every step of the way, they inspected before we moved on to the next step. We had so many permits. It appears the homeowner didn't do any of this though.

The homeowner certainly made a couple big mistakes, but I don't think I've seen any credible claims that the homeowner failed to obtain permits or that the builder proceeded without inspections. You'd expect the county to inspect the foundation, but they wouldn't have necessarily noticed anything at that point. The main next inspection point isn't until after framing, which they were still doing. It seems like the public attention got them to do an out-of-cycle inspection, hence the various framing related issues in the report.

The report referenced a survey from a private surveyor. I don't know if the county ordered that or if it came from the neighbor. That might have been the impetus for the county to do their inspection when they did.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:What would happen if the homeowner were to choose to file one type of application, say for a special permit, but the board finds that a different type of application would be more appropriate? Can the board send it back to the homeowner saying, sorry you’ll need to re-file with a different application?

Can the homeowner go to the board in advance and ask for clarification on what type of request is most appropriate for a particular situation?

I'm in an adjacent county and yes. We were able to talk directly with knowledgeable people about what permits needed pulled and what we needed to do. We were doing our own basement renovation. At every step of the way, they inspected before we moved on to the next step. We had so many permits. It appears the homeowner didn't do any of this though.

The homeowner certainly made a couple big mistakes, but I don't think I've seen any credible claims that the homeowner failed to obtain permits or that the builder proceeded without inspections. You'd expect the county to inspect the foundation, but they wouldn't have necessarily noticed anything at that point. The main next inspection point isn't until after framing, which they were still doing. It seems like the public attention got them to do an out-of-cycle inspection, hence the various framing related issues in the report.

The report referenced a survey from a private surveyor. I don't know if the county ordered that or if it came from the neighbor. That might have been the impetus for the county to do their inspection when they did.

Can you please post a link to this report? Thank you.

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

A special permit would not be my first choice. It gives the zoning board too much discretion:

(c) The proposed use, including its design and operational characteristics, must not adversely
affect the use or future development of neighboring properties and must be in accordance
with the applicable zoning district regulations. The location, size and height of buildings,
structures, walls, and fences, as well as the nature and extent of screening, buffering and
landscaping cannot hinder or discourage the appropriate development and use, or impair the
value of, adjacent or nearby land or buildings.

"Proposed use" refers to the modification they're seeking- in this case, a small reduction in the setback requirements.

But you're right, it does give them a lot of discretion. This is not a path someone is going to want go down. Which is why the claimed concerns about encouraging mistakes or fraud are absurd. The cost and disruption involved is already more than enough to heavily discourage this.

You just build in a three month delay to your schedule. You know the county is going to stop you at some point for three months to review the permit, but you also know that the county will always issue because it's "too expensive" to fix if you get far enough along. It becomes speeding ticket.

So you need to come up with a small enough issue that it doesn't meaningfully impact your neighbors, but it has a significant enough benefit for you that you'll accept the delay, risk, and cost?

That's a stretch, to say the least.

Like deciding not to build the approved garage and building another room instead?

[Anonymous]

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

The person who thinks the homeowner should apply for a special permit has been asked several times for the reasons they think this situation fits into a special permit request rather than a variance.

As a non-lawyer, when I read the Fairfax County zoning website, it appears that this situation should be handled by a variance application because of the dimensional quality of the issue here. The site specifically says that issues that involve dimensions need a variance. It seems that a wall intruding almost six inches into the setback very clearly involves a question of the dimensions involved.

The person filing for relief picks the relief they want to seek. They want a reduction in the setback requirement. That is very clearly in the list of items that can be addressed through a special permit:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2583#secid-2583

I really don't understand why think "Reduction of Required Setbacks" doesn't apply here.

Thank you for your detailed response. One poster was asked this question several times and only gave vague answers.

It does look as though either route would work. The county is likely to give the request a thorough review, whether the homeowner files for a special permit or a variance.

I would avoid anything that let the county consider anything other than the setback. Special permits also mention the "Comprehensive Plan" and it's broad enough that it can be applied either way to this issue. Make the county decide on the single issue of the setback.

Why do I doubt the authenticity of your post?

The homeowner has hired people for this issue. He's not going to be coming to dcum for legal advice. There's no point to trying to misdirect him here.

His lawyer is absolutely going to tell him to go the special permit route. You obviously know that. And while it isn't a given that it will be granted, you are misrepresenting how their decision will be scoped.

What's my motivation to lie?

You don't want to let the county start considering things outside of the single setback issue. The Comprehensive Plan is pro-housong but also pro-preservation of existing character.

Your writing style suggests you're the same poster that has repeated the problems with variances over and over again. You know the special permit is a better path.

Just like you know the permit is evaluated for the modification it seeks. The Comprehensive Plan does not speak to a 8 foot versus 7.5 foot setback. You're suggesting they can make it about the design and height of the structure, despite them already being aligned with the requirements of that zone, but that's not how the law is written.

I don't know what your motivations are here, but they're weird.

You can believe what you want. The first two points from requirements for a special permit:

(a) The proposed use at the specified location must be in harmony with the Comprehensive Plan.

(b) The proposed use must be in harmony with the general purpose and intent of the zoning
district where it is to be located.

Note the weasel words, "harmony" and "intent." Intent is different than the letter of the law. That would make me very nervous about who is doing the interpretation.

I think a variance is safer because it limits what is brought to the hearing. I still he would have a difficult time with the variance because he probably can't prove his usage is so unique is must be granted. Still, I think it's a better approach than some holistic review with poorly defined, and conflicting, goals.

[Anonymous]

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

A special permit would not be my first choice. It gives the zoning board too much discretion:

(c) The proposed use, including its design and operational characteristics, must not adversely
affect the use or future development of neighboring properties and must be in accordance
with the applicable zoning district regulations. The location, size and height of buildings,
structures, walls, and fences, as well as the nature and extent of screening, buffering and
landscaping cannot hinder or discourage the appropriate development and use, or impair the
value of, adjacent or nearby land or buildings.

"Proposed use" refers to the modification they're seeking- in this case, a small reduction in the setback requirements.

But you're right, it does give them a lot of discretion. This is not a path someone is going to want go down. Which is why the claimed concerns about encouraging mistakes or fraud are absurd. The cost and disruption involved is already more than enough to heavily discourage this.

You just build in a three month delay to your schedule. You know the county is going to stop you at some point for three months to review the permit, but you also know that the county will always issue because it's "too expensive" to fix if you get far enough along. It becomes speeding ticket.

So you need to come up with a small enough issue that it doesn't meaningfully impact your neighbors, but it has a significant enough benefit for you that you'll accept the delay, risk, and cost?

That's a stretch, to say the least.

Like deciding not to build the approved garage and building another room instead?

Yeah, that's weird when there's already a process for getting that excepted. Why choose the slower and more expensive path?

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Anonymous wrote:Is there a financial point at which it makes sense to just take down what’s been built so far and return the lot to the condition it was before construction began?

It just seems that this poor guy didn’t know what he was doing and it’s just costing more and more money. At some point, it would seem that good money is being thrown after bad and it would be a wiser use of limited funds to just stop the loss.

Is there a way for someone to calculate whether it is less expensive to just stop? Possibly an online calculator for a situation like this?

You seem to be making an assumption that the county won't adjust the setback. There's a good chance they will. The garage area probably could be swapped back if absolutely necessary. The foundation should already be strong enough. Even if they were start over with a narrower rebuild, the neighbor might fight them anyway, so they can't assume no legal battles either way.

What makes you so confident the county is going to adjust the setback?

I don’t think the county will approve this one, too much opposition to the project. With a variance or special permit allowing community feedback in the process, they will use that to deny an exception. Other projects requesting a variance do not receive so much public opposition. Fairfax county doesn’t want to be in the national news again and they’re quickly rewriting building regulations to prevent this from occurring in the future.

The homeowner’s best shot is to resolve the setback issue and build exactly to the rest of the approved plans. Every time he’s trying to change something it, it leads to new issues (eg off street parking). He’s focused on layout changes first as I guess that will help resolve 2 issues in the stop work list: 1) header not installed at first floor opening and 2) opening layout has changed from approved plans.

PS- the permit expires if work is suspended for six months. We’re past month 2 with a stop work order and nothing on the setback issue appears to be filed yet.

I wouldn't say I'm confident, but I think there's a good chance. They can't deny a modification based on unpopularity. The public comments could try to claim an impact, but we all know the concern is based on the height, not the 6 inches. The height isn't the relevant issue.

He can't build to the approved plans without a setback modification. There isn't enough space. Any change at this point is going to require a redesign, new or modified permits, demolition, and significant materials and labor costs. The neighbors would also likely attempt legal action to block a rebuild, perhaps hoping that they could delay things long enough to change zoning ordinances.

He's already in a terrible spot, but by far his best chance at avoiding catastrophic financial loss and lengthy delays is to push for a setback modification. Worst case, he loses and that puts him in the same place you him to go now. He'd be out his legal-related expenses, but despite them being substantial, they are still in the weeds compared to the costs involved in starting over.

Besides the garage and setback, all of the other issues were either related to incomplete work or fairly easily repairable construction errors.

He didn't build the approved plans. The approved plans show a 8.5' setback from the property line.

Well, we'll to agree to disagree on that. I would say they followed the plan, but the plan had an error.

Regardless, I'd really love to see you try to set footers for a deck or addition just taking measurements from the property line, rather than the house.

Here’s the thing: if you’re building something that is required to be a certain distance from the property line, why would you not measure the distance from the property line? It seems like a very basic, obvious thing to do and, honestly, it appears a bit foolish to have not done this very simple thing. How difficult would it have been to take a tape measure and ascertain that the foundation that was about to be poured was the correct distance from the property line?

They might have done that. Presumably they would have repeated the same mistake of thinking the fence was on the property line.

This was certainly a huge mistake by the homeowner. But it was a mistake made when they made the plans. It wasn't an error in where the builders placed the addition, which is what a previous poster claimed. That poster just didn't want to concede the point that the county approved the plan that contained the error.

The plans submitted to the county asserted that the side wall would be 8.5 feet from the property line, not the fence line. Had the homeowner followed the approved plans and measured from the actual property line, there would be no setback issue here.

This is the homeowner’s mistake by not getting a survey and measuring, measuring, and measuring again before allowing any concrete to be poured.

Putting practicalities aside, let's say they laid out the foundation using the property line as the reference point. They still wouldn't have been able to follow the plans. They wouldn't have had enough space between the house and the far end of the foundation for the addition specified in the plan.

Because, again, the problem was in the plans themselves, not in the construction.

You really want this argument to work, but the fact is, if the homeowner had had a survey done before beginning construction he would have been able to build the addition within the correct setback. The homeowner did not do his due diligence, and that is why he is in this very expensive situation now.

Before construction? Does that mean you finally understand the error was in the plans?

You clearly want someone else besides the homeowner to bear responsibility for this issue, but in the end, the fact is that the homeowner made careless mistakes and submitted plans that he didn’t even follow (plans showed a garage, but the actual construction has no garage). Adding careless mistakes to conscious choices to alter the plans after approval, the homeowner did not put himself in a terribly sympathetic position here.

The homeowner is bearing the responsibility for those errors. He is now spending tens of thousands of dollars due to them. No one else is going to be paying for his mistakes. That's punishment enough.

I somehow doubt you'd have such strong feelings about a 6 inch setback encroachment if this was a single level addition. You just don't like what he's building, or his family's living situation, so you're hoping they use this as an opportunity to knock him down.

If this were a single level addition, no one would have noticed. The builder invited scrutiny with his thoughtless behavior. "The nail that sticks up gets hammered down."

Exactly, because a 6 inch encroachment into the setback doesn't have a meaningful impact. Your issue is with the height and design, not the setback.

Not what I said. I am saying that it would have gone unnoticed. The behavior of the builder attracted unwanted scrutiny, and all the errors were uncovered. I am sure there are numerous setback violations in Fairfax County that go undiscovered. However, *if* the county finds one, they all get the same treatment. Nextdoor is full of posts about people having to tear down or move sheds due to setback violations.

You said exactly that: "If this were a single level addition, no one would have noticed."

The 6 inches wouldn't be noticed. People are noticing the height, which isn't in violation.

This is an addition on a house, not a shed. There's not nearly the same ability to reasonably move or rebuild this, which you surely know. Your dislike of the addition is causing you to think irrationally.

Not the poster you are responding to, but you are correct. This may get people doing additionas to think rationally and make sure that they fit into aesthetics so that they don't garner the wrong attention for their build. It's not required, but it's a good incentive, don't you think?

Not the previous poster, but the building code is complicated. I am relatively sure that any inspector can find enough violations on any work site to issue a stop work. And with further investigation, find violations they need a special permit or variance.

Don't piss off the county is the moral of the story.

Basically, yes. Which is why is incredibly short-sighted to suggest the BZA/county should apply the law differently because they don't like the homeowner or home.

Equal protection under the law.

Dislike of the height or design isn't relevant here. The issue is the impact of the requested modification- the 6 inch setback modification. If you can come up with a coherent and meaningful impact of those 6 inches, then go for it.

That's backward. The builder needs to prove why he needs to violate the setback. What is so unusual about his project that he needs to violate the standards everyone else is held to? That's going to be a difficult argument because he's only going to be missing a few square feet to follow the setback. Did he really really need than extra 30 sq. ft. enjoy his property? Is there some minimum room dimension he needed?

That's the standard for a variance, not a special permit.

The person who thinks the homeowner should apply for a special permit has been asked several times for the reasons they think this situation fits into a special permit request rather than a variance.

As a non-lawyer, when I read the Fairfax County zoning website, it appears that this situation should be handled by a variance application because of the dimensional quality of the issue here. The site specifically says that issues that involve dimensions need a variance. It seems that a wall intruding almost six inches into the setback very clearly involves a question of the dimensions involved.

The person filing for relief picks the relief they want to seek. They want a reduction in the setback requirement. That is very clearly in the list of items that can be addressed through a special permit:
https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx?secid=2583#secid-2583

I really don't understand why think "Reduction of Required Setbacks" doesn't apply here.

Thank you for your detailed response. One poster was asked this question several times and only gave vague answers.

It does look as though either route would work. The county is likely to give the request a thorough review, whether the homeowner files for a special permit or a variance.

I would avoid anything that let the county consider anything other than the setback. Special permits also mention the "Comprehensive Plan" and it's broad enough that it can be applied either way to this issue. Make the county decide on the single issue of the setback.

Why do I doubt the authenticity of your post?

The homeowner has hired people for this issue. He's not going to be coming to dcum for legal advice. There's no point to trying to misdirect him here.

His lawyer is absolutely going to tell him to go the special permit route. You obviously know that. And while it isn't a given that it will be granted, you are misrepresenting how their decision will be scoped.

What's my motivation to lie?

You don't want to let the county start considering things outside of the single setback issue. The Comprehensive Plan is pro-housong but also pro-preservation of existing character.

Your writing style suggests you're the same poster that has repeated the problems with variances over and over again. You know the special permit is a better path.

Just like you know the permit is evaluated for the modification it seeks. The Comprehensive Plan does not speak to a 8 foot versus 7.5 foot setback. You're suggesting they can make it about the design and height of the structure, despite them already being aligned with the requirements of that zone, but that's not how the law is written.

I don't know what your motivations are here, but they're weird.

You can believe what you want. The first two points from requirements for a special permit:

(a) The proposed use at the specified location must be in harmony with the Comprehensive Plan.

(b) The proposed use must be in harmony with the general purpose and intent of the zoning
district where it is to be located.

Note the weasel words, "harmony" and "intent." Intent is different than the letter of the law. That would make me very nervous about who is doing the interpretation.

I think a variance is safer because it limits what is brought to the hearing. I still he would have a difficult time with the variance because he probably can't prove his usage is so unique is must be granted. Still, I think it's a better approach than some holistic review with poorly defined, and conflicting, goals.

The proposed use is a house. In a residential neighborhood. How is that in conflict?