Massive home addition causes confusion in Fairfax County neighborhood

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:"Errors are exactly the expected scenario for special permits for small violations of the setback requirements."

- this is not the case when the error is the fault of the permittee. There was nothing inherently wrong with the property/lot itself and all issues here are principally the fault of the owner. Zoning variances are not given as a favor to someone who messed up on their own. Think of the incentives, no need to do the work properly and spend additional money because it will just get approved at the end. Small or large, it does not matter as this is a binary issue, it is either over the setback line or behind it. Fire safety is important here as the new addition is very close to the neigboring structure.

This is not a special permit situation anyways, as that is for use of the property. They may need one should they seek a zoning exception for multi family.

https://www.fairfaxcounty.gov/planning-development/sites/planning-development/files/assets/documents/zoning/special%20permit%20process/specialpermit-applicationpackage.pdf

This issue needs to be sorted out through the zoning variance process with the BZA. It will be time consuming and difficult, as the root cause of the issue here has nothing to do with special conditions of the property itself, rather failure to do things property by the owner.

The special permit process covers small (<10%) errors when when measuring or laying out a structure. That seems to cover this case.

This isn’t a multi-family structure or living situation, so I’m not sure why you referenced that.

Someone who knows what they’re talking about is giving you useful information here. The owners need to talk to a lawyer about how to proceed- a real lawyer who will need to be paid. Going cheap on everything is not working out so far.

NAL here, but from the posts written above, it looks like small errors are not covered under the special permit process when they occur because of negligence (as in not getting a professional survey). An error through mistake is not the same as an error made after doing due diligence. The owners should talk to a lawyer familiar with the Fairfax County process to get good advice, if they haven’t already.

Well, I certainly agree the owner should bring in a lawyer for this. They're going to need to reference the right ordinances and precedents, and demonstrate a willingness to take this court if necessary.

Yes, it would be very helpful for a lawyer to explain the legal meaning of the specific words and phrases being used by the county, so that the owners don’t make further mistakes that will cost even more.

The owners have been penny wise and pound foolish about the building process so far. A lawyer could help guide them in making better decisions going forward. Yes, a good lawyer will cost money, but good advice could help the owners avoid throwing good money after bad.

Maybe hiring a good GC and a lawyer who can work together could help the owners keep from losing more money on the project in the future. Spending some money for good advice and guidance could save money in the long run.

[Anonymous]

Given that no one engaged in commenting here is a decision maker on the Fairfax County BZA in all likelihood, none of us know what the BZA will ultimately rule. That being said, we can have fun and engage in our own zero-stakes debate with our personal understanding of the rules (which ultimately is meaningless).

From Fairfax County code on Special Permits:
(https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx#secid-2583)

The Zoning Administrator may approve a reduction in the minimum setback requirements when a building or freestanding accessory structure (whether existing or partially constructed) does not comply with the minimum setback requirements applicable at the time such building or accessory structure was erected. A reduction may be approved in accordance with the following provisions:

1. The Zoning Administrator determines that:
a. )The error does not exceed ten percent of the applicable measurement;
The owner appears to satisfy this (6 inches / 96 inch setback = 6.25%).

b. The noncompliance was done through no fault of the property owner, or was the result of an error in the location of the building or structure after the issuance of a building permit, if required;
The owner is likely at fault due to their failure to have proper surveying performed and validated both before and during construction. The owners clearly did not determine the correct layout of property lines in conjunction with the planned addition and conform their design accordingly. I read that the owner claimed to have engaged a surveyor, but there are many different levels of surveys offered and I think it is fair to assume that no comprehensive site survey with pins being laid was done , nor any sort of pre-construction stake out…the owner went the cheap route. The owner has a duty to ensure all design and construction was compliant with relevant codes and any other applicable regulations. They are the permittee and general contractor in this situation, so they are wholly responsible.

c. It will not impair the purpose and intent of this Ordinance;

d. It will not be detrimental to the use or enjoyment of other property in the immediate vicinity;
The next-door neighbor is now able weigh in with their opinions, which they did not have initially due to the addition being constructed by right. Given that a special permit / variance must be sought, the next-door neighbors can now go on record and offer their views to the BZA for consideration. The neighbor can weigh in on any host of subjective matters that they feel may cause them harm – it is just up to the BZA to consider and determine how much, if any weight to give them. For example, the next-door neighbor has solar panels on their home, and the addition under construction may be detrimental to their power output due to reduced insolation.

e. It will not create unsafe conditions regarding other properties or public streets;
This is debatable, as a primary reason for side yard setbacks is fire separation and public safety. The new addition contains a kitchen and six bedrooms. The most common place in a home for a fire to occur is the kitchen. The second most common place is a bedroom. If I was the next-door neighbor, I would be raising fire safety as a principal concern in opposition to allowing the structure to exceed the required 8 foot minimum setback. One can see on a street view how close the neighbor’s home is to the addition. This should be a reasonable objection to raise.

f. Compliance with the minimum setback requirements would cause the owner unreasonable hardship; and
The violation of setbacks is due to the negligence of the owner failing to perform accurate surveys and confirm that the addition conformed to minimum setbacks. There is no unreasonable hardship caused to the homeowner as this is a reasonable outcome of failing to do the proper survey work. Losing money due to a mistake of one’s own accord is not a get out of jail free card in this sort of process.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:So basically it doesn't just LOOK like a bunch of sheets of particle board nailed together haphazardly. ..it actually IS that? It's going to fall over.

Weird to tell them they can't go over to fix it then.

The homeowner as GC "fix" would be to bury the violations behind drywall or siding so they can't be inspected and ask for an exception.

Stop spreading that lie. The son not homeowner is GC and it smells of elder abuse to me.

[Anonymous]

Anonymous wrote:Given that no one engaged in commenting here is a decision maker on the Fairfax County BZA in all likelihood, none of us know what the BZA will ultimately rule. That being said, we can have fun and engage in our own zero-stakes debate with our personal understanding of the rules (which ultimately is meaningless).

From Fairfax County code on Special Permits:
(https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx#secid-2583)

The Zoning Administrator may approve a reduction in the minimum setback requirements when a building or freestanding accessory structure (whether existing or partially constructed) does not comply with the minimum setback requirements applicable at the time such building or accessory structure was erected. A reduction may be approved in accordance with the following provisions:

1. The Zoning Administrator determines that:
a. )The error does not exceed ten percent of the applicable measurement;
The owner appears to satisfy this (6 inches / 96 inch setback = 6.25%).

b. The noncompliance was done through no fault of the property owner, or was the result of an error in the location of the building or structure after the issuance of a building permit, if required;
The owner is likely at fault due to their failure to have proper surveying performed and validated both before and during construction. The owners clearly did not determine the correct layout of property lines in conjunction with the planned addition and conform their design accordingly. I read that the owner claimed to have engaged a surveyor, but there are many different levels of surveys offered and I think it is fair to assume that no comprehensive site survey with pins being laid was done , nor any sort of pre-construction stake out…the owner went the cheap route. The owner has a duty to ensure all design and construction was compliant with relevant codes and any other applicable regulations. They are the permittee and general contractor in this situation, so they are wholly responsible.

c. It will not impair the purpose and intent of this Ordinance;

d. It will not be detrimental to the use or enjoyment of other property in the immediate vicinity;
The next-door neighbor is now able weigh in with their opinions, which they did not have initially due to the addition being constructed by right. Given that a special permit / variance must be sought, the next-door neighbors can now go on record and offer their views to the BZA for consideration. The neighbor can weigh in on any host of subjective matters that they feel may cause them harm – it is just up to the BZA to consider and determine how much, if any weight to give them. For example, the next-door neighbor has solar panels on their home, and the addition under construction may be detrimental to their power output due to reduced insolation.

e. It will not create unsafe conditions regarding other properties or public streets;
This is debatable, as a primary reason for side yard setbacks is fire separation and public safety. The new addition contains a kitchen and six bedrooms. The most common place in a home for a fire to occur is the kitchen. The second most common place is a bedroom. If I was the next-door neighbor, I would be raising fire safety as a principal concern in opposition to allowing the structure to exceed the required 8 foot minimum setback. One can see on a street view how close the neighbor’s home is to the addition. This should be a reasonable objection to raise.

f. Compliance with the minimum setback requirements would cause the owner unreasonable hardship; and
The violation of setbacks is due to the negligence of the owner failing to perform accurate surveys and confirm that the addition conformed to minimum setbacks. There is no unreasonable hardship caused to the homeowner as this is a reasonable outcome of failing to do the proper survey work. Losing money due to a mistake of one’s own accord is not a get out of jail free card in this sort of process.

By this logic, any error would be from "negligence". But obviously they understand mistakes happen, since nearly all of these special permits are granted. Maybe fully all.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Given that no one engaged in commenting here is a decision maker on the Fairfax County BZA in all likelihood, none of us know what the BZA will ultimately rule. That being said, we can have fun and engage in our own zero-stakes debate with our personal understanding of the rules (which ultimately is meaningless).

From Fairfax County code on Special Permits:
(https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx#secid-2583)

The Zoning Administrator may approve a reduction in the minimum setback requirements when a building or freestanding accessory structure (whether existing or partially constructed) does not comply with the minimum setback requirements applicable at the time such building or accessory structure was erected. A reduction may be approved in accordance with the following provisions:

1. The Zoning Administrator determines that:
a. )The error does not exceed ten percent of the applicable measurement;
The owner appears to satisfy this (6 inches / 96 inch setback = 6.25%).

b. The noncompliance was done through no fault of the property owner, or was the result of an error in the location of the building or structure after the issuance of a building permit, if required;
The owner is likely at fault due to their failure to have proper surveying performed and validated both before and during construction. The owners clearly did not determine the correct layout of property lines in conjunction with the planned addition and conform their design accordingly. I read that the owner claimed to have engaged a surveyor, but there are many different levels of surveys offered and I think it is fair to assume that no comprehensive site survey with pins being laid was done , nor any sort of pre-construction stake out…the owner went the cheap route. The owner has a duty to ensure all design and construction was compliant with relevant codes and any other applicable regulations. They are the permittee and general contractor in this situation, so they are wholly responsible.

c. It will not impair the purpose and intent of this Ordinance;

d. It will not be detrimental to the use or enjoyment of other property in the immediate vicinity;
The next-door neighbor is now able weigh in with their opinions, which they did not have initially due to the addition being constructed by right. Given that a special permit / variance must be sought, the next-door neighbors can now go on record and offer their views to the BZA for consideration. The neighbor can weigh in on any host of subjective matters that they feel may cause them harm – it is just up to the BZA to consider and determine how much, if any weight to give them. For example, the next-door neighbor has solar panels on their home, and the addition under construction may be detrimental to their power output due to reduced insolation.

e. It will not create unsafe conditions regarding other properties or public streets;
This is debatable, as a primary reason for side yard setbacks is fire separation and public safety. The new addition contains a kitchen and six bedrooms. The most common place in a home for a fire to occur is the kitchen. The second most common place is a bedroom. If I was the next-door neighbor, I would be raising fire safety as a principal concern in opposition to allowing the structure to exceed the required 8 foot minimum setback. One can see on a street view how close the neighbor’s home is to the addition. This should be a reasonable objection to raise.

f. Compliance with the minimum setback requirements would cause the owner unreasonable hardship; and
The violation of setbacks is due to the negligence of the owner failing to perform accurate surveys and confirm that the addition conformed to minimum setbacks. There is no unreasonable hardship caused to the homeowner as this is a reasonable outcome of failing to do the proper survey work. Losing money due to a mistake of one’s own accord is not a get out of jail free card in this sort of process.

By this logic, any error would be from "negligence". But obviously they understand mistakes happen, since nearly all of these special permits are granted. Maybe fully all.

Again, an error by mistake is different from an error that is the result of negligence: as in, not taking the proper steps necessary to attempt to do the job correctly.

You really need to talk to a lawyer who can help you understand the meaning of words used in a legal sense. Words used in regulations don’t always have the same meanings they gave in common conversation. Instead, they have very particular meanings in very particular contexts. A lawyer can help to explain these regulations.

[Anonymous]

Yes, but this isnt' just "any"request. Lots of people are upset about this addition getting approved and the public is paying attention. Also, want to point out that the current structure is already 6 inches too close to the neighbors house before the addition of siding, roofing, gutters, etc. It could be much closer to the 10% threshold

[Anonymous]

I have a question about what “multi family” vs family use means. Presumably 3 families could move in, one per floor. If all 3 are siblings, is that okay? Who monitors who actually lives there?

[Anonymous]

Anonymous wrote:Yes, but this isnt' just "any"request. Lots of people are upset about this addition getting approved and the public is paying attention. Also, want to point out that the current structure is already 6 inches too close to the neighbors house before the addition of siding, roofing, gutters, etc. It could be much closer to the 10% threshold

Closer, but still not over.

Any objections to the height or design aren't relevant to the impact of the 6 inches. Would their concerns be meaningfully impacted if the structure was moved over a foot? Regardless of what you might claim, we all know they wouldn't.

This is why the homeowner needs a lawyer to argue this. While the approval process is discretionary, the board is still obligated to make their decisions fairly and consistently. And if they've always found that an encroachment of this size is de minimis, then they'd have a hard time upholding a rejection in this case.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Yes, but this isnt' just "any"request. Lots of people are upset about this addition getting approved and the public is paying attention. Also, want to point out that the current structure is already 6 inches too close to the neighbors house before the addition of siding, roofing, gutters, etc. It could be much closer to the 10% threshold

Closer, but still not over.

Any objections to the height or design aren't relevant to the impact of the 6 inches. Would their concerns be meaningfully impacted if the structure was moved over a foot? Regardless of what you might claim, we all know they wouldn't.

This is why the homeowner needs a lawyer to argue this. While the approval process is discretionary, the board is still obligated to make their decisions fairly and consistently. And if they've always found that an encroachment of this size is de minimis, then they'd have a hard time upholding a rejection in this case.

Yes, the homeowners do need a lawyer to explain the zoning codes and regulations to them. It appears they might not understand and they’re hoping to find a way that will allow them to go on building this addition. They have spent a lot of money and just don’t want to spend more. Maybe a lawyer can help them figure out how to get out of this situation while losing as little more as they have to.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Given that no one engaged in commenting here is a decision maker on the Fairfax County BZA in all likelihood, none of us know what the BZA will ultimately rule. That being said, we can have fun and engage in our own zero-stakes debate with our personal understanding of the rules (which ultimately is meaningless).

From Fairfax County code on Special Permits:
(https://online.encodeplus.com/regs/fairfaxcounty-va/doc-viewer.aspx#secid-2583)

The Zoning Administrator may approve a reduction in the minimum setback requirements when a building or freestanding accessory structure (whether existing or partially constructed) does not comply with the minimum setback requirements applicable at the time such building or accessory structure was erected. A reduction may be approved in accordance with the following provisions:

1. The Zoning Administrator determines that:
a. )The error does not exceed ten percent of the applicable measurement;
The owner appears to satisfy this (6 inches / 96 inch setback = 6.25%).

b. The noncompliance was done through no fault of the property owner, or was the result of an error in the location of the building or structure after the issuance of a building permit, if required;
The owner is likely at fault due to their failure to have proper surveying performed and validated both before and during construction. The owners clearly did not determine the correct layout of property lines in conjunction with the planned addition and conform their design accordingly. I read that the owner claimed to have engaged a surveyor, but there are many different levels of surveys offered and I think it is fair to assume that no comprehensive site survey with pins being laid was done , nor any sort of pre-construction stake out…the owner went the cheap route. The owner has a duty to ensure all design and construction was compliant with relevant codes and any other applicable regulations. They are the permittee and general contractor in this situation, so they are wholly responsible.

c. It will not impair the purpose and intent of this Ordinance;

d. It will not be detrimental to the use or enjoyment of other property in the immediate vicinity;
The next-door neighbor is now able weigh in with their opinions, which they did not have initially due to the addition being constructed by right. Given that a special permit / variance must be sought, the next-door neighbors can now go on record and offer their views to the BZA for consideration. The neighbor can weigh in on any host of subjective matters that they feel may cause them harm – it is just up to the BZA to consider and determine how much, if any weight to give them. For example, the next-door neighbor has solar panels on their home, and the addition under construction may be detrimental to their power output due to reduced insolation.

e. It will not create unsafe conditions regarding other properties or public streets;
This is debatable, as a primary reason for side yard setbacks is fire separation and public safety. The new addition contains a kitchen and six bedrooms. The most common place in a home for a fire to occur is the kitchen. The second most common place is a bedroom. If I was the next-door neighbor, I would be raising fire safety as a principal concern in opposition to allowing the structure to exceed the required 8 foot minimum setback. One can see on a street view how close the neighbor’s home is to the addition. This should be a reasonable objection to raise.

f. Compliance with the minimum setback requirements would cause the owner unreasonable hardship; and
The violation of setbacks is due to the negligence of the owner failing to perform accurate surveys and confirm that the addition conformed to minimum setbacks. There is no unreasonable hardship caused to the homeowner as this is a reasonable outcome of failing to do the proper survey work. Losing money due to a mistake of one’s own accord is not a get out of jail free card in this sort of process.

By this logic, any error would be from "negligence". But obviously they understand mistakes happen, since nearly all of these special permits are granted. Maybe fully all.

Again, an error by mistake is different from an error that is the result of negligence: as in, not taking the proper steps necessary to attempt to do the job correctly.

You really need to talk to a lawyer who can help you understand the meaning of words used in a legal sense. Words used in regulations don’t always have the same meanings they gave in common conversation. Instead, they have very particular meanings in very particular contexts. A lawyer can help to explain these regulations.

[Anonymous]

Anonymous wrote:I have a question about what “multi family” vs family use means. Presumably 3 families could move in, one per floor. If all 3 are siblings, is that okay? Who monitors who actually lives there?

Yes, that's literally what the zoning board says. Related by blood or marriage.

If you suspect the neighbors are running afoul of this, you can make a complaint to the county, and they'll decide whether to investigate.

[Anonymous]

Anonymous wrote:I have a question about what “multi family” vs family use means. Presumably 3 families could move in, one per floor. If all 3 are siblings, is that okay? Who monitors who actually lives there?

Floors don't matter. The issues are: 1) are they related by blood or marriage, and 2) do they live as a single household? There's some subjectivity in 2), but if you share a kitchen, living areas, and expenses, then you probably function as a single household.

[Anonymous]

Thank you to the above poster who laid out the whole BZA process.

I do suspect that the homeowner is going to be very close (if not over) the 10% setback variance threshold.

A 10% threshold is 9.6 inches (10% of 96 inches) They are currently sitting at 6 inches short. An additional 3.5 inches more will be over 10%. Add in siding, gutters, roof line, etc it could easily go over the 10% threshold.

[Anonymous]

Anonymous wrote:Thank you to the above poster who laid out the whole BZA process.

I do suspect that the homeowner is going to be very close (if not over) the 10% setback variance threshold.

A 10% threshold is 9.6 inches (10% of 96 inches) They are currently sitting at 6 inches short. An additional 3.5 inches more will be over 10%. Add in siding, gutters, roof line, etc it could easily go over the 10% threshold.

Gutters alone are 5 or 6 inches.

[Anonymous]

Like many things in life, it looks like the winners here will ultimately be the lawyers, as this has the potential to be tied up in the courts for a while.

If anyone needs an attorney in this matter, it is the next-door neighbor. Should the BZA somehow rule in favor of the owners of the addition, the next-door neighbor, as an aggrieved party, has 30 days to file an appeal to the Circuit Court per Virginia Code 15.2-2314. In a TV inteview, the next-door neighbor lamented that that there was nothing she could do to stop the project, however as a result of the permittee violating setbacks and it moving to the appeals process, she now has some cards to potentially play.

The owner of the addition would also be within their rights to file an appeal if the ruling is unfavorable to him.

Once an appeal can make it to the the courts, the BZA no longer has any say. BZA approvals absolutely can be overturned in the courts. Cochran v. Fairfax County Board of Zoning Appeals found that zoning variance can only be granted by authorities is if that zoning bylaw makes all reasonable beneficial use lost on that property. I am not a judge, but I would find it difficult to successfully argue that a denial of the variance renders ALL beneficial use lost on the property.

Should the next-door neighbor, or some other aggrieved party with standing choose to appeal and litigate, it may be some time before any progress is made, be it construction in its current form, alteration, or demolition. It is certainly not good for the owners however to have the addition remain in limbo for long as unfinished construction can deteriorate quickly. The next-door neighbor will be stuck in the meantime with an unfinished white-elephant next to her. This situation underscores why it is critical to do all of the proper planning and monitoring to mitigate this sort of thing happening after construction has started.