Massive home addition causes confusion in Fairfax County neighborhood

[Anonymous]

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

The denial has a strong legal basis and it is unlikely to be overturned. The variance request falls squarely under government police powers granted by state law. They county has no legal obligation to grant a variance for the property because they did not follow the approved building plan and permit.

[Anonymous]

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

If the 7 extra inches of width really impacts the neighbors' enjoyment, the opinion doesn't state that anywhere. To the contrary, the opinion expressly states that they were considering the structure as a whole, not just the variance. This is why the opinion is vulnerable.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

The denial has a strong legal basis and it is unlikely to be overturned. The variance request falls squarely under government police powers granted by state law. They county has no legal obligation to grant a variance for the property because they did not follow the approved building plan and permit.

Plz cite. Thx.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

If the 7 extra inches of width really impacts the neighbors' enjoyment, the opinion doesn't state that anywhere. To the contrary, the opinion expressly states that they were considering the structure as a whole, not just the variance. This is why the opinion is vulnerable.

You are wrong about several of your statements here. It would be a good idea to talk to a real lawyer who understands these issues.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

If the 7 extra inches of width really impacts the neighbors' enjoyment, the opinion doesn't state that anywhere. To the contrary, the opinion expressly states that they were considering the structure as a whole, not just the variance. This is why the opinion is vulnerable.

The negative impact to the neighbor is addressed in the letter. This is the quote from the letter…

“in particular, the property to the northwest closest to the right side yard in question is negatively impacted
due to the looming nature and "wall effect" created by an addition of this height and bulk; that impact is further
aggravated given the addition's failure to meet the proposed setback of 8.5 feet.”

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

If the 7 extra inches of width really impacts the neighbors' enjoyment, the opinion doesn't state that anywhere. To the contrary, the opinion expressly states that they were considering the structure as a whole, not just the variance. This is why the opinion is vulnerable.

You are wrong about several of your statements here. It would be a good idea to talk to a real lawyer who understands these issues.

I'm a really lawyer. Not a property lawyer. But a practicing attorney.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

If the 7 extra inches of width really impacts the neighbors' enjoyment, the opinion doesn't state that anywhere. To the contrary, the opinion expressly states that they were considering the structure as a whole, not just the variance. This is why the opinion is vulnerable.

The negative impact to the neighbor is addressed in the letter. This is the quote from the letter…


“in particular, the property to the northwest closest to the right side yard in question is negatively impacted
due to the looming nature and "wall effect" created by an addition of this height and bulk; that impact is further
aggravated given the addition's failure to meet the proposed setback of 8.5 feet.”

Please link to the denial letter. I read what PP quoted, and it does not address the impact of the setback variance requested.

Assuming what you say is true, then the opinion is stronger given that they actually addressed that. The bare conclusion is dubious though. The "wall effect" exists either either way, and there is no explanation as to how the "wall effect" is exacerbated by a 7-inch change in the width of a structure, nor why the "wall effect" impacts the neighbor's enjoyment in a legally cognizable way, given OP's entitlement to build a three-story structure as a matter of right.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:One of the provisions the Zoning Administrator must consider is if the variance will be “detrimental to the use or enjoyment of other property in the immediate vicinity”

This is where the bulk of the county’s response was. Think the homeowner has a hard time proving that his addition doesn’t impact the use or enjoyment of his neighbors. Enjoyment is very subjective and I can tell you I absolutely wouldn’t enjoy my property if I lived next to that. It’s a hard argument to make that the neighbors are not negatively impacted.

I don't agree. If the structure, which was otherwise compliant, was 7 inches narrower, the enjoyment by the neighbors would be identical. Their enjoyment issues go to the size of the structure itself, which the county approved and which was with the zoning/building code rules.

Agree that the neighbors (and I think there is a lot more than 1 impacted), enjoyment is similar whether it is 7inches or not. BUT the neighbors enjoyment was not a consideration in the approval process when the homeowner followed building code.

He did not build to code and seeks a variance. Now, neighbors use and enjoyment is a consideration and taken into account with the variance request.

With a variance, homeowners right to build doesn’t automatically get a pass because it was fine before. With the variance, the community gets a say and there is a lot of public opposition to this project. It’s going to be an interesting case.

Hope the homeowner gets a better lawyer than he did contractor. The contractor letter submitted about hardship with the variance request was awful.

I’m also surprised that the county is dealing with Mr. Nguyen and addressing him as the homeowner. He is not the homeowner of record on the tax pages.

But this is not logical reasoning. If the height of the structure isn't at issue, the neighbors' enjoyment (or lack thereof) of the structure should not be considered. The enjoyment analysis should only go to thing being varied. Will the 7 extra inches of width negatively impact the neighbors' enjoyment?

I'll admit, I haven't read the codes or statutes at issue. I'd be curious to read that and any caselaw interpreting it.

There are reasons zoning ordinances are written with certain setbacks specified. One of the reasons is that the character of a neighborhood will vary depending upon how far apart the structures are built. At the time of writing the ordinance which applies here, the county deemed 8 feet as the necessary side setback for this zone. So, yes, an extra 7 inches can negatively affect neighbors. If it didn’t matter, the ordinance would have had a different setback requirement. Yes, sometimes variances are granted, but only under certain circumstances.

On the ownership issue, is it possible that the gentleman is acting as the agent for the actual owner, or possibly has a POA?

[Anonymous]

Documents from the zoning appeal can be found with link below. Go under records info and then attachments.

https://plus.fairfaxcounty.gov/CitizenAccess/Cap/CapDetail.aspx?Module=Zoning&TabName=Zoning&capID1=REC26&capID2=00000&capID3=0053H&agencyCode=FFX&IsToShowInspection=

[Anonymous]

The letters I saw scanned on the county website were addressed to Minh Nguyen. Is that a different person than Mike?

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:One of the provisions the Zoning Administrator must consider is if the variance will be “detrimental to the use or enjoyment of other property in the immediate vicinity”

This is where the bulk of the county’s response was. Think the homeowner has a hard time proving that his addition doesn’t impact the use or enjoyment of his neighbors. Enjoyment is very subjective and I can tell you I absolutely wouldn’t enjoy my property if I lived next to that. It’s a hard argument to make that the neighbors are not negatively impacted.

I don't agree. If the structure, which was otherwise compliant, was 7 inches narrower, the enjoyment by the neighbors would be identical. Their enjoyment issues go to the size of the structure itself, which the county approved and which was with the zoning/building code rules.

Agree that the neighbors (and I think there is a lot more than 1 impacted), enjoyment is similar whether it is 7inches or not. BUT the neighbors enjoyment was not a consideration in the approval process when the homeowner followed building code.

He did not build to code and seeks a variance. Now, neighbors use and enjoyment is a consideration and taken into account with the variance request.

With a variance, homeowners right to build doesn’t automatically get a pass because it was fine before. With the variance, the community gets a say and there is a lot of public opposition to this project. It’s going to be an interesting case.

Hope the homeowner gets a better lawyer than he did contractor. The contractor letter submitted about hardship with the variance request was awful.

I’m also surprised that the county is dealing with Mr. Nguyen and addressing him as the homeowner. He is not the homeowner of record on the tax pages.

But this is not logical reasoning. If the height of the structure isn't at issue, the neighbors' enjoyment (or lack thereof) of the structure should not be considered. The enjoyment analysis should only go to thing being varied. Will the 7 extra inches of width negatively impact the neighbors' enjoyment?

I'll admit, I haven't read the codes or statutes at issue. I'd be curious to read that and any caselaw interpreting it.

There are reasons zoning ordinances are written with certain setbacks specified. One of the reasons is that the character of a neighborhood will vary depending upon how far apart the structures are built. At the time of writing the ordinance which applies here, the county deemed 8 feet as the necessary side setback for this zone. So, yes, an extra 7 inches can negatively affect neighbors. If it didn’t matter, the ordinance would have had a different setback requirement. Yes, sometimes variances are granted, but only under certain circumstances.

On the ownership issue, is it possible that the gentleman is acting as the agent for the actual owner, or possibly has a POA?

Someone with more knowledge should chime in with a cite, but my understanding is that variances for errors within 10% are routinely granted in ordinary course (I think without the need for notice and hearing?). Sounds like the owner’s breach was within the 10% margin.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

If the 7 extra inches of width really impacts the neighbors' enjoyment, the opinion doesn't state that anywhere. To the contrary, the opinion expressly states that they were considering the structure as a whole, not just the variance. This is why the opinion is vulnerable.

The negative impact to the neighbor is addressed in the letter. This is the quote from the letter…


“in particular, the property to the northwest closest to the right side yard in question is negatively impacted
due to the looming nature and "wall effect" created by an addition of this height and bulk; that impact is further
aggravated given the addition's failure to meet the proposed setback of 8.5 feet.”

Please link to the denial letter. I read what PP quoted, and it does not address the impact of the setback variance requested.

Assuming what you say is true, then the opinion is stronger given that they actually addressed that. The bare conclusion is dubious though. The "wall effect" exists either either way, and there is no explanation as to how the "wall effect" is exacerbated by a 7-inch change in the width of a structure, nor why the "wall effect" impacts the neighbor's enjoyment in a legally cognizable way, given OP's entitlement to build a three-story structure as a matter of right.

The OPs “entitlement” to build the structure that tall ended when he crossed over the setback allowances. And he’s still entitled to build a 3 story structure as a matter of right (at least for now) within the setback allowances.

Once he crossed over the setback allowances, there is more scrutiny and others property rights are now considered in addition to the homeowners.

The County has determined as the letter stated “ the Zoning Administrator is unable to determine that the addition as currently designed is not detrimental to the use and enjoyment of other properties in the immediate vicinity.”

And the Zoning Administrator must determine if setback variance “will not be detrimental to the use or enjoyment of other property in the immediate vicinity”. This is one of the qualifying considerations of the zoning ordinances. The Zoning Administrator has to make an assessment on the impact to the neighbors.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:One of the provisions the Zoning Administrator must consider is if the variance will be “detrimental to the use or enjoyment of other property in the immediate vicinity”

This is where the bulk of the county’s response was. Think the homeowner has a hard time proving that his addition doesn’t impact the use or enjoyment of his neighbors. Enjoyment is very subjective and I can tell you I absolutely wouldn’t enjoy my property if I lived next to that. It’s a hard argument to make that the neighbors are not negatively impacted.

I don't agree. If the structure, which was otherwise compliant, was 7 inches narrower, the enjoyment by the neighbors would be identical. Their enjoyment issues go to the size of the structure itself, which the county approved and which was with the zoning/building code rules.

Agree that the neighbors (and I think there is a lot more than 1 impacted), enjoyment is similar whether it is 7inches or not. BUT the neighbors enjoyment was not a consideration in the approval process when the homeowner followed building code.

He did not build to code and seeks a variance. Now, neighbors use and enjoyment is a consideration and taken into account with the variance request.

With a variance, homeowners right to build doesn’t automatically get a pass because it was fine before. With the variance, the community gets a say and there is a lot of public opposition to this project. It’s going to be an interesting case.

Hope the homeowner gets a better lawyer than he did contractor. The contractor letter submitted about hardship with the variance request was awful.

I’m also surprised that the county is dealing with Mr. Nguyen and addressing him as the homeowner. He is not the homeowner of record on the tax pages.

But this is not logical reasoning. If the height of the structure isn't at issue, the neighbors' enjoyment (or lack thereof) of the structure should not be considered. The enjoyment analysis should only go to thing being varied. Will the 7 extra inches of width negatively impact the neighbors' enjoyment?

I'll admit, I haven't read the codes or statutes at issue. I'd be curious to read that and any caselaw interpreting it.

There are reasons zoning ordinances are written with certain setbacks specified. One of the reasons is that the character of a neighborhood will vary depending upon how far apart the structures are built. At the time of writing the ordinance which applies here, the county deemed 8 feet as the necessary side setback for this zone. So, yes, an extra 7 inches can negatively affect neighbors. If it didn’t matter, the ordinance would have had a different setback requirement. Yes, sometimes variances are granted, but only under certain circumstances.

On the ownership issue, is it possible that the gentleman is acting as the agent for the actual owner, or possibly has a POA?

Someone with more knowledge should chime in with a cite, but my understanding is that variances for errors within 10% are routinely granted in ordinary course (I think without the need for notice and hearing?). Sounds like the owner’s breach was within the 10% margin.

The letter addresses the 10% margin:

“While additional encroachment to stay within the ten-percent, you state that installation of vinyl siding on the addition will result in a final setback "around" 7.3 feet, you acknowledge that both the dimension of the vinyl siding and the final setback are both approximated. In this case, the measurements at hand are so close to the ten-percent limit that there is practically no room for further error or uncertainty. As a result, the Zoning Administrator is unable to applicable side yard setback.”

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:One of the provisions the Zoning Administrator must consider is if the variance will be “detrimental to the use or enjoyment of other property in the immediate vicinity”

This is where the bulk of the county’s response was. Think the homeowner has a hard time proving that his addition doesn’t impact the use or enjoyment of his neighbors. Enjoyment is very subjective and I can tell you I absolutely wouldn’t enjoy my property if I lived next to that. It’s a hard argument to make that the neighbors are not negatively impacted.

I don't agree. If the structure, which was otherwise compliant, was 7 inches narrower, the enjoyment by the neighbors would be identical. Their enjoyment issues go to the size of the structure itself, which the county approved and which was with the zoning/building code rules.

Agree that the neighbors (and I think there is a lot more than 1 impacted), enjoyment is similar whether it is 7inches or not. BUT the neighbors enjoyment was not a consideration in the approval process when the homeowner followed building code.

He did not build to code and seeks a variance. Now, neighbors use and enjoyment is a consideration and taken into account with the variance request.

With a variance, homeowners right to build doesn’t automatically get a pass because it was fine before. With the variance, the community gets a say and there is a lot of public opposition to this project. It’s going to be an interesting case.

Hope the homeowner gets a better lawyer than he did contractor. The contractor letter submitted about hardship with the variance request was awful.

I’m also surprised that the county is dealing with Mr. Nguyen and addressing him as the homeowner. He is not the homeowner of record on the tax pages.

But this is not logical reasoning. If the height of the structure isn't at issue, the neighbors' enjoyment (or lack thereof) of the structure should not be considered. The enjoyment analysis should only go to thing being varied. Will the 7 extra inches of width negatively impact the neighbors' enjoyment?

I'll admit, I haven't read the codes or statutes at issue. I'd be curious to read that and any caselaw interpreting it.

There are reasons zoning ordinances are written with certain setbacks specified. One of the reasons is that the character of a neighborhood will vary depending upon how far apart the structures are built. At the time of writing the ordinance which applies here, the county deemed 8 feet as the necessary side setback for this zone. So, yes, an extra 7 inches can negatively affect neighbors. If it didn’t matter, the ordinance would have had a different setback requirement. Yes, sometimes variances are granted, but only under certain circumstances.

On the ownership issue, is it possible that the gentleman is acting as the agent for the actual owner, or possibly has a POA?

Someone with more knowledge should chime in with a cite, but my understanding is that variances for errors within 10% are routinely granted in ordinary course (I think without the need for notice and hearing?). Sounds like the owner’s breach was within the 10% margin.

The letter addresses the 10% margin:

“While additional encroachment to stay within the ten-percent, you state that installation of vinyl siding on the addition will result in a final setback "around" 7.3 feet, you acknowledge that both the dimension of the vinyl siding and the final setback are both approximated. In this case, the measurements at hand are so close to the ten-percent limit that there is practically no room for further error or uncertainty. As a result, the Zoning Administrator is unable to applicable side yard setback.”

Right. So it's within the 10% that the BZA consistently approves, but they won't approve it here.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Legally the height of the structure is not an issue. The issue is the structure (including its height) is too close to the property line.

The utilization and enjoyment of the neighbors was always an issue, even when it was being built to code. So to answer your question, does 7 inches really impact the neighbors enjoyment. The answer is absolutely yes.

That’s why the BOS looked into it and is reviewing building ordinances as a whole to make sure this type of project doesn’t happen again. However, legally the county could not use the neighbors enjoyment and utilization as a reason to deny the project. Under a variation the neighbors and community become part of the considerations for approval.

If the 7 extra inches of width really impacts the neighbors' enjoyment, the opinion doesn't state that anywhere. To the contrary, the opinion expressly states that they were considering the structure as a whole, not just the variance. This is why the opinion is vulnerable.

The negative impact to the neighbor is addressed in the letter. This is the quote from the letter…


“in particular, the property to the northwest closest to the right side yard in question is negatively impacted
due to the looming nature and "wall effect" created by an addition of this height and bulk; that impact is further
aggravated given the addition's failure to meet the proposed setback of 8.5 feet.”

Please link to the denial letter. I read what PP quoted, and it does not address the impact of the setback variance requested.

Assuming what you say is true, then the opinion is stronger given that they actually addressed that. The bare conclusion is dubious though. The "wall effect" exists either either way, and there is no explanation as to how the "wall effect" is exacerbated by a 7-inch change in the width of a structure, nor why the "wall effect" impacts the neighbor's enjoyment in a legally cognizable way, given OP's entitlement to build a three-story structure as a matter of right.

The OPs “entitlement” to build the structure that tall ended when he crossed over the setback allowances. And he’s still entitled to build a 3 story structure as a matter of right (at least for now) within the setback allowances.

Once he crossed over the setback allowances, there is more scrutiny and others property rights are now considered in addition to the homeowners.

The County has determined as the letter stated “ the Zoning Administrator is unable to determine that the addition as currently designed is not detrimental to the use and enjoyment of other properties in the immediate vicinity.”

And the Zoning Administrator must determine if setback variance “will not be detrimental to the use or enjoyment of other property in the immediate vicinity”. This is one of the qualifying considerations of the zoning ordinances. The Zoning Administrator has to make an assessment on the impact to the neighbors.

I'm not sure this is the appropriate standard of review, particularly since the requested variance is within the 10% buffer zone in which variances are routinely granted.