Save Our Little City

Dan Maller’s case was refused by the Virginia Supreme Court in a ruling passed down on 06/26/2012.  Dan Maller appealed the decision of Arlington County Circuit Court Judge James Almand who previously ruled against him in his lawsuit against the City of Falls  Church and Foundations Under Development and Management (FUDM) on the matter of sub-standard lot residential construction on Lincoln  Avenue.

The refusal of Dan Maller’s appeal by the Supreme Court affirms the Zoning Administrators consistent application of the code.  The City, staff and the McArthur’s are finally vindicated by the courts rulings.  I have provided a copy of Dan Maller’s appeal.

Click here to read Maller’s Supreme Court Appeal .

Follow the link to the Falls Church News Press for more information.

http://www.fcnp.com/news/9682-judge-rules-vs-maller-in-upholding-zoning-decision-on-fc-sub-standard-lots.html

I wanted to let everyone know that our court date (Maller .vs. City of Falls Church & McArthur’s) is next week on the 14^th of July in the circuit court of Arlington 10^th floor at 10am if you’re interested in going to the proceedings.  This is an important moment for substandard lot owners in the City of Falls Church.  While we are hopeful of a positive outcome we do remain guarded.  I will report on the outcome next week (i.e. Thursday night) once the judge renders his/her decision on the matter.

It should also be pointed out that the City did give us the approval and permits to build our new home on 1005A Lincoln Ave.  We have started work and are excited with the prospects of moving in to our new home by the end of the year.

I also wanted to let everyone know that last week a group of citizens from North Oak Street went in front of City Council to present a petition that I attached to this e-mail for your convenience.  I am not sure if what precipitated this, but maybe it was our building permit for 1005A or the upcoming court case.  I think I should make it clear that there are two separate but related issues: 1^st is the personal matter that Mr. Maller has viciously attacked and tried to financially ruin us in our pursuit to build our new home on Lincoln.  He has already failed in this task.  2^nd  is the substandard lot development issue which I will continue to defend the vested property rights of property owners in the City of Falls Church.

Petitionresubstandardlots

I put together four main counter points to their petition because I think facts always win out.

1)      There is an assumption by these residents that houses built on more than one lot are already combined.  I have learned a lot in the last few months about land use law and the truth is lots can never be automatically or retroactively combined if there is a process in place to combine them.  The city has a process defined in the City Code on how to formally consolidate lots.  The petition mentions the 13 houses on 27 lots.  Personally, I encourage each resident in the City that owns a house on multiple lots to contact the city and consolidate them if they are that passionate about it. That is their right to do so.

2)      The petition states 1000 new homes could be built in the city which I believe they got from the ZOAC report.  A member of the ZOAC on the same day the ZOAC report was officially submitted to city council actually refuted that claim by stating there are only 273 substandard parcels with multiple lots in the entire city.  If you were to do further analysis of each lot you’d find there are less than 100 substandard parcels with multiple lots that are actually considered buildable.  Here is the ZOAC members report http://fccpts.com/wordpress/?page_id=330 if you are interested in reviewing. 

3)      They discuss property rights but they don’t mention the “Taking of Property Rights” from those that do not conform to their point of view.  There are two sides to this issue and both sides are as passionate as the other side.

4)      To the point about reduced setback lines and impervious coverage.  The city has clear guidelines on lot coverage <= 25% and impervious coverage <= 35%.  Regardless if one or two houses are built the fact remains that 35% impervious coverage is 35% either way you cut it.  One of the bigger issues which continually gets glossed over by everyone in the city is the simple fact that if one were to demolish their house and build a new house on the same property, in most cases would not be able to build a dwelling of equal square footage because of building height restrictions, front yard averaging and side/rear setback ordinances on the books or being proposed by the ZOAC.  I would have to think even the residents that signed this petition would be taken back by those facts.

Finally I should mention the new director of Planning, Mr. Snyder has started to look at this issue.  My belief is that he wants to resolve this issue once and for all and will amend the code to eventually prevent any further development of these lots.  I am most concerned about residents who have development plans in the works or who are thinking about future plans and how they may be impacted by this decision.  I am hoping for an open dialoge on these issues that was promised by city council, but I have not been given any assuranses this will happen.  Maybe the City will provide the residents with a reasonable grace period before they finalize such changes.  While I may still be apposed to the final outcome, it does give residents time to decide what they want to do with their property.  Hopefully the outcome of our case will provide precedent of any further action by the city.

By MARK GROSS
Vice-President, Village Preservation and Improvement Society

As many of you know, the City of Falls Church is committed to revising its zoning code. A few months ago, a Task Force of citizens reviewed the code and issued a report that suggested changes both to residential and commercial areas of the City. While a few parts of the report have engendered a lively and often confusing debate, there are many other issues the Report raises that will affect the future of both the residential and commercial areas of our city.

On Sunday May 15, from 3:00 to 5:00 pm in the Teen Center room at the Community Center, the Falls Church Village Preservation and Improvement Society is holding its semi-annual membership meeting. Anyone, whether a member or not, may attend. At the meeting, VPIS will present a discussion of the zoning ordinance issues by distinguished individuals well placed to know what the code now requires and how it might be changed. Members of the panel are Mayor Nader Baroukh, newly appointed Planning Director Jim Snyder, and John Murphy, a member of the City’s Board of Zoning Appeals and the Chair of the Task Force that wrote the Report recommending amendments to the Zoning Code. The panel will discuss the important issues that face the City in both its residential and commercial areas and how changing the Code can improve the City. The panel discussion promises to be both lively and informative, and undoubtedly will be an entertaining way for the public to get the accurate information essential to informed public debate on the future of the Zoning Code and the appearance of the City of Falls Church. And, refreshments will be served following the panel discussion.

http://fallschurchtimes.com/28778/everything-you-wanted-to-know-about-the-city-zoning-code-revisons-but-were-afraid-to-ask/

In order to better understand the points rendered in the ZOAC report pertaining to “development rights for individual substandard lots that were previously developed jointly”, I commissioned a legal analysis by Attorney John H. Foote at the law firm of Walsh, Colucci, Lubeley, Emrich & Walsh, P.C.  This firm comprises some of the foremost experts on land use in Virginia and I welcome their valued input on this subject.

4 Important Points:

1. Denial of development rights to each lot would constitute a “taking” of property under the Fifth and Fourteenth Amendments to the United States Constitution, and the relevant provisions of the Virginia Constitution.
2. It is a commonly accepted, but false, proposition that residential development never pays for itself.  Fiscal modeling demonstrates that in any given jurisdiction, there is a value at which a home does generate more tax revenue from various sources including real estate taxation that it requires in publicly financed services.
3. Lots may unequivocally be used today, without combination, which makes the proposition of forced combination elsewhere a more intriguing equal protection inquiry.  
4.  The Planning Commission has a formal process for combining lots through an application and review process. Upon approval by the Planning Commission, the lots are re-titled, re-surveyed and re-named.

“Legal Analysis is Posted”  Download it now!!!!

See Attached: Legal Analysis of ZOAC Report

See Attached: Taking the Mystery out of the ZOAC Report

We want to thank all those property owners who took time to attend the City Council meeting this last Monday the 28^th.  It was a great showing and from initial feedback Council was very impressed by all those that stood in UNISON to show their concern for Property Rights and to soundly voice their disagreement with the majority of the ZOAC recommendations listed out in their final report.

The City Council no longer will hear one voice on this subject matter.  We will continue to reach out and educate property owners so they understand the full impact of the proposed zoning changes the ZOAC is recommending. We are just begining, but we like the response we are getting from residents of the City.  Plus more petitions keep coming in

Here is a copy of a report that we submitted to City Council that refutes some of the basic claims in the ZOAC.  The ZOAC took over 4 years to put this report together and it only took two weeks find these egregious errors.

See Attached: Taking the Mystery out of the ZOAC Report

“Legal Analysis is Posted”  Download it now!!!!

See Attached: Legal Analysis of ZOAC Report

Finally:  We posted the legal Analysis from one of the best Land Use Attorney’s in the state of Virginia that will soundly refute the ZOAC findings.  This report will be presented to Council before the March 7th working session where they start taking up the ZOAC recommendations.  I am sure you’ll find this report factual, based on solid legal grounds and case law, unlike the ZOAC report.

ZOAC recommendations have been submitted to City Council!

Go to: www.fallschurchva.gov and search for ZOAC.

ATTENTION PROPERTY OWNERS with MULTIPLE LOTS!
 
This ZOAC recommendation directly affects you:

Recommendation #6: Add an “intent statement” to the code, indicating that lots that were jointly developed after February 14, 1944 were under joint ownership and reasonably combined at that time and  DO NOT have individual development rights. 

 THE IMPACT TO YOU!

• This change would force ALL substandard lots that now or ever had a house on it to be combined with any adjacent lot/s the owner possesses. Even if you had previously created an LLC or Trust to protect your investment.

 The Supreme Court of Virginia has already ruled against forced consolidation of lots in 2006.  The ZOAC is trying to legislate these changes in the City because they know they can’t win in the Virginia Courts. If YOU don’t speak out now, you’ll lose your property rights and your property value will drop.

The City Council will be officially receiving the new zoning recommendations on February 28^th, 7:30pm at City Hall.

Be in attendance and be heard on February 28^th

Our past two weekends have been spent hand-delivering over 1200 petitions around the city.  Our initial listing of property owners was based on the information we received from our Freedom of Information Act (FOIA) to the city regarding substandard lot owners, but please spread the word this is for all property owners in the city.  Please read more under the ‘About’ page as we updated that section of the website based on comments received during our face-to-face time with citizens.  Petitions needed by February 28th!!

THIS JUST IN:  We have learned the new ZOAC recommendations that will be reviewed starting on the 7th of March by the City Council will drastically diminish if not eliminate the ability for property owners to make improvements on their substandard lots.  If you don’t believe me read the report for yourself. Here it is attached below:

Download the entire report here: ZOAC Final Report 12-30-10

IMPACT of ZOAC recommendations explained here: http://fccpts.com/wordpress/?page_id=246

HERE IS WHAT WE LEARNED ABOUT THE ZOAC REPORT: OUCH!!!!!

Summary of 9 Residential Recommendations

1.  Create an R-1C zoning district for neighborhoods where all of the current parcels are substandard for the R-1B district.  An example is Greenway Downs, where virtually all of the houses are nonconforming.
2. Change townhouse requirements to eliminate the three acre minimum for townhouses and allow runs of three or four.  This could be allowed by special use in the R districts.  
3. Prohibit single family houses in the combined T district, (see commercial recommendations for the combined T district) but allow townhouses and live/work units.
4. Modify the current height restrictions for substandard lots by area to include substandard lots by width or area.
5. Eliminate the setback bonuses for houses built on substandard lots.
6. Add an “intent statement” to the code, indicating that lots that were jointly developed after February 14, 1944 were under joint ownership and reasonably combined at that time and do not have individual development rights.  An example of an intent statement is, “It is the intent of this section that individual substandard lots of record jointly developed at any time after February 14, 1944 to meet the requirements of the zoning code may not separately be used for a one-family dwelling because they were under common ownership when combined at the time of the joint development.”
7. Allow up to one-bedroom accessory dwelling units, separated from the primary use, in the R-1A and R-1B districts – subject to the lot coverage and impervious surface coverage requirements in place.
8. Increase the lot coverage or impervious coverage on lots in the R-1A, R-1B, and R-1C districts by no more than 10 percentage points each if the new structure is certified under a recognized standard (such as LEED or Virginia Earthcraft) and there is an approved mitigation plan that will limit runoff to the 25%/35% “by right” levels, or require an appropriate contribution of funds to storm water filtration facilities that will be required by the City under the Chesapeake Bay requirements.
9.  Increase protection of historic structures by enabling mandatory HARB approval for exterior renovations that impact the historic character of the structure.  Virginia code appears to allow mandatory HARB approval prior to issuing a building permit for any renovations.  (Vote – 6:1)

** Most of these new residential ordinance changes severely cripple and negatively impact property values!  The ZOAC recommendations affect every property owner.  Every property owner will be affected by these new recommendations unless the City Council hears from YOU! 

Property values of the neighborhood will experience downward pressure over time by restricting what type of home improvements can be done, if any.  The improvements that have occurred over the past 10 years will come to a screeching halt.  Most residential builders/home improvement companies are already leery of working in the City because it is not considered a builder friendly community.  These new zoning changes will confirm to property owners what builders already know. 

Moral of the story:  Property owners who benefited from the current zoning ordinance and improved their home want their neighbors to do the same, but their neighbors’ will be unable to do the same which actually inhibits equity growth in the home that made improvements.  So for those improved properties to think these new zoning changes don’t affect them are being very short sighted.

We had a great turnout at the American Legion on Sunday, approximately 40 people.  For those that attended heard the concerns on both sides with the majority of the attendees being as concerned as we are regarding Property Rights and Property Values.

For some, this has been their retirement plan to get the best value possible out of their land and knowing that there are citizens in the City that would like to take this away from them is of great concern.  One of the most alarming facts being that some of these folks are not substandard lot owners so therefore it is not something that impacts them as it does the 986 substandard lot owners as identified by city records.

Front Yard Averaging was another good topic at the meeting.  Citizens were alarmed to hear there is apparently a ‘party settlement’ agreed upon by the BZA regarding Front Yard Averaging and even more alarmed that the City has not reached out to notify the citizens of such a matter.

Art McArthur spoke again at the City Council on January 24th.  Upon completion, Mayor Nader Baroukh advised the ZOAC recommendations would reviewed and discussed at the City Council Working Session on March 7, 2011.  It was also stated by the Mayor that substandard lots would also be discussed in this session.  This is one that we all need to attend to hear the City Council address this issue.  Based on the discussions of the working session, it would then be open to the public to voice their concerns at the March 14, 2011 City Council meeting.

Click on the URL below, then go to the bottom of the page and fine “City Council” City Council Regular Meeting Jan 24, 2011 and click on Video.  Start the Video at 43 minute mark.  You may also want to listen to the two speakers (i.e. Gordon Theisz and Dan Maller) that follow me.  These two have repeatedly gone before the City Council to impose their views on substandard lots which we are strongly against.  That is why we need your voice to be heard.  Everyone is entitled to get up and speak every two weeks at the City Council. 

 http://www.fallschurchva.gov/Content/Government/Council/Meetings.aspx?cnlid=276

We have received positive feedback from many of you regarding this initiative of saving our Property Rights and Property Values and we have to keep in mind that we must be a united front to prevail.  We will be having ongoing meetings to keep everyone up to date.  Please continue to check the website for such postings.  It has been suggested that we start a listing of email addresses for such notifications as well.  Please feel free to send us your email address to stay current on such matters.  Send email addresses to admin@fccpts.com

The Petition(s) are off to a great start.  We will be going door-to-door to the 986 households to inquire about signature.  Please do not feel you have to stand before City Council to have a voice.  Your signature on the Petition(s) will say just as much to our City Council.  We, the McArthurs, have no issue taking on the face of this endeavor to again ensure we can all maintain our American Dream and do as we please with our little piece of America within the current law and guidelines as established by Our City.

Please continue to provide feedback and get your signed petitions in the mail to us!!