Massive home addition causes confusion in Fairfax County neighborhood

[Anonymous]

Anonymous wrote:

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.

The point is that the numbers that they’ve been given are only approximations, so it is not clear that it is within the 10%. Unfortunately, there’s evidence that this homeowner has changed plans without permission before (the plans showed a front entry garage, but the actual structure did not include a garage), so maybe the board does not feel confident that they can rely on the approximate numbers included in this appeal. Any mistake in the approximated numbers has the potential to put it over the 10% margin.

[Anonymous]

Anonymous wrote:

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.

Then what is the appropriate standard of review?

Read the letter it’s one of about 7 things they consider, including hardship to the homeowner. Section 5100.2.D(11)(c) of the Zoning Ordinance

PS - the front of the house is over the setback allowance as well, it’s just not as egregious as the back corner.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

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.

The point is that the numbers that they’ve been given are only approximations, so it is not clear that it is within the 10%. Unfortunately, there’s evidence that this homeowner has changed plans without permission before (the plans showed a front entry garage, but the actual structure did not include a garage), so maybe the board does not feel confident that they can rely on the approximate numbers included in this appeal. Any mistake in the approximated numbers has the potential to put it over the 10% margin.

The board didn't mention any of that in the denial letter.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

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.

The point is that the numbers that they’ve been given are only approximations, so it is not clear that it is within the 10%. Unfortunately, there’s evidence that this homeowner has changed plans without permission before (the plans showed a front entry garage, but the actual structure did not include a garage), so maybe the board does not feel confident that they can rely on the approximate numbers included in this appeal. Any mistake in the approximated numbers has the potential to put it over the 10% margin.

The board didn't mention any of that in the denial letter.

The board specifically notes that the numbers are approximations and that they are so close that “there is practically no room for error or uncertainty.” Read the quote above. They are clear that approximations are not good enough.

The sentence that is bolded uses the word “maybe” so it is clear that the poster is suggesting a possibility, not that it is written in the letter.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

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.

The point is that the numbers that they’ve been given are only approximations, so it is not clear that it is within the 10%. Unfortunately, there’s evidence that this homeowner has changed plans without permission before (the plans showed a front entry garage, but the actual structure did not include a garage), so maybe the board does not feel confident that they can rely on the approximate numbers included in this appeal. Any mistake in the approximated numbers has the potential to put it over the 10% margin.

The board didn't mention any of that in the denial letter.

Doesn’t mean it’s not fact. And the county knows it he’s been sloppy/untrustworthy to build according to plans. The setback issue, fine might have been a survey issue; however, not building the garage??? What was that excuse?

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

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.

The point is that the numbers that they’ve been given are only approximations, so it is not clear that it is within the 10%. Unfortunately, there’s evidence that this homeowner has changed plans without permission before (the plans showed a front entry garage, but the actual structure did not include a garage), so maybe the board does not feel confident that they can rely on the approximate numbers included in this appeal. Any mistake in the approximated numbers has the potential to put it over the 10% margin.

The board didn't mention any of that in the denial letter.

Doesn’t mean it’s not fact. And the county knows it he’s been sloppy/untrustworthy to build according to plans. The setback issue, fine might have been a survey issue; however, not building the garage??? What was that excuse?

I guess I don’t know what’s in the record for appeal purposes, but generally speaking the issue needs to be documented in the record or it won’t be considered on appeal.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

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.

The point is that the numbers that they’ve been given are only approximations, so it is not clear that it is within the 10%. Unfortunately, there’s evidence that this homeowner has changed plans without permission before (the plans showed a front entry garage, but the actual structure did not include a garage), so maybe the board does not feel confident that they can rely on the approximate numbers included in this appeal. Any mistake in the approximated numbers has the potential to put it over the 10% margin.

The board didn't mention any of that in the denial letter.

The board specifically notes that the numbers are approximations and that they are so close that “there is practically no room for error or uncertainty.” Read the quote above. They are clear that approximations are not good enough.

The sentence that is bolded uses the word “maybe” so it is clear that the poster is suggesting a possibility, not that it is written in the letter.

So strict liability if they don’t comply. Seems easy enough to force them to find building materials and worn them that they’ll have to tear down the structure if it breaches the 10% buffer.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

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.

The point is that the numbers that they’ve been given are only approximations, so it is not clear that it is within the 10%. Unfortunately, there’s evidence that this homeowner has changed plans without permission before (the plans showed a front entry garage, but the actual structure did not include a garage), so maybe the board does not feel confident that they can rely on the approximate numbers included in this appeal. Any mistake in the approximated numbers has the potential to put it over the 10% margin.

The board didn't mention any of that in the denial letter.

The board specifically notes that the numbers are approximations and that they are so close that “there is practically no room for error or uncertainty.” Read the quote above. They are clear that approximations are not good enough.

The sentence that is bolded uses the word “maybe” so it is clear that the poster is suggesting a possibility, not that it is written in the letter.

So strict liability if they don’t comply. Seems easy enough to force them to find building materials and worn them that they’ll have to tear down the structure if it breaches the 10% buffer.

Again, within a 10% variance is only one consideration. The Zoning Administrator has 7 considerations to assess when deciding whether to allow a variance. No one consideration appears to be more important than another.

[Anonymous]

Can someone tell me where the matter stands now? Recent posts have become quite technical.

[Anonymous]

Anonymous wrote:

Can someone tell me where the matter stands now? Recent posts have become quite technical.

The homeowner applied for a variance, which was denied. They PP's are discussing the denial. The denial is now being appealed.

[Anonymous]

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.

You are talking to a brick wall. The PP doesn't want to understand that any variance or exception is going to let the BZA consider additional factors outside of the distance into the setback.

The homeowner should already have a lawyer. He's in over his head with a board that has decades of experience.

[Anonymous]

Anonymous wrote:

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.

By approximately 1.2". Given the builder's forthrightness in previous transactions, I believe the BZA is not confident in his approximation.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

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.

By approximately 1.2". Given the builder's forthrightness in previous transactions, I believe the BZA is not confident in his approximation.

Yes, I think it is too close for them to be comfortable that it truly is within that 10% margin.

[Anonymous]

Don't these regularly go to the BZA itself rather than handled by staff?

That being said, I fully expect the homeowner will need to appeal the ultimate BZA decision to circuit court. And there county set themselves up to lose with Pat Herrity's earlier comments.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

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.

By approximately 1.2". Given the builder's forthrightness in previous transactions, I believe the BZA is not confident in his approximation.

Yes, I think it is too close for them to be comfortable that it truly is within that 10% margin.

The builder should have sought some advice from an expert, like a lawyer, that, no doubt, would have suggested a detailed drawing including finishes and not an approximation. But a penny saved, is a penny earned. /s