ZMOD

April 2021 ZMOD Decision Summary

Dear All,

Despite hundreds of letters from residents and strenuous opposition from citizen associations across the county, the Board of Supervisors approved controversial changes to the zoning ordinance related to accessory apartments (Accessory Living Units “ALUs”) , home businesses, freestanding accessory structures, and flags/flagpoles that were injected into its zoning modernization project (zMOD).

Here, in Mason District, there was tremendous opposition from communities and individual residents in the form of resolutions, oral testimony, and letters. Nevertheless, Mason District Supervisor Gross voted with six other Board members to approve zMOD. Three supervisors -- Herrity, Alcorn and Storck voted to not approve.

More than 75 speakers testified at the Board of Supervisors’ public hearing -- many representing citizens associations around the county and overwhelmingly opposed the substantive zoning changes proposed through zMOD. Here are links to each of the zMOD public hearings.

Planning Commission zMOD Public Hearing January 28, 2021: http://video.fairfaxcounty.gov/player/clip/1969?view_id=10&redirect=true

Board of Supervisors zMOD Public Hearing March 9, 2021: http://video.fairfaxcounty.gov/player/clip/2019?view_id=7&redirect=true

Some of the notable changes in ZMOD include:

Accessory Apartments (ALUs) (see page 268)

1) Removes the requirement for a special permit including public notice and public hearings when a homeowner seeks to construct a basic accessory apartment (ALU) within their single-family detached dwelling. With the zMOD changes, the apartments will be approved via simple administrative permit. Neighbors will not be notified nor will they have an opportunity to influence decisions on basic ALUs in public hearings.

2) Removes the requirement that someone aged 55 or older or with a disability must reside in either the primary dwelling or in the accessory apartment.

3) Retains the requirement that the property owner must reside in either the primary dwelling or the accessory apartment.

4) Allows the use of an entire basement for an ALU.

Home Based Businesses (see page 274)

1) Expands the range of home businesses allowed while eliminating essential current regulations that protect neighborhoods from home business operations. New business categories include: health and exercise facilities, retail sales of anything legal to sell in Virginia and small-scale production of anything legal to manufacture. Retail sales and small-scale production are limited to making sales and delivering items exclusively online or off-site.

2) Prohibits on-site customers or clients without approval of a special permit, (public notice and hearing with the Board of Zoning Appeals) except for instructional activities with a health and exercise facility or specialized instruction center, where up to four students at a time and eight in a day are allowed.

3) Eliminates limits on equipment or processes used by home businesses other than a prohibition of hazardous materials that would require a permit under the county fire prevention code.

4) Eliminates the Department of Code Compliance’s right to inspect a home business.

Accessory Structures (see page 256)

1) Allows freestanding accessory structures, such as sheds, children’s play equipment, and gazebos, up to 12 feet in height to be located 5 feet from the side and rear lot lines

2) Allows enclosed accessory structures up to 20 ft. in height

3) Allows any number of enclosed accessory structures with a cumulative sq. footage of up to 50% of the gross floor area of the dwelling on lots up to 36,000 sf.

Flags and Flagpoles (see page 268)

1) Adds a maximum flagpole height of 25 feet for lots with single-family dwellings or manufactured homes and 60 feet for lots with all other uses, with the ability to request a special permit for an increased height.

2) Does not limit size of flags

Lawsuits

Many residents and associations are frustrated by the Board’s zMOD decision and believe that considering and acting on zMOD during the pandemic exceeded power granted to the Board during the COVID emergency. There are also concerns related to the substance of zMOD. As a result, one lawsuit has been filed and a second soon will follow. Thus far, the Alliance Law Group which is representing residents in these matters has done the first case largely on a pro bono basis. However, with potential appeals, complexities of the second case, and opposition from the County, money will be needed for growing legal costs and fees. Residents from around the county have recently launched a funding effort.

If you would like more information,you can be in touch with:

Adrienne Whyte at ReclaimFairfaxCounty@gmail.com

To contribute you can mail a check to:

Reclaim Fairfax County

c/o Adrienne Whyte

6704 West Falls Way

Falls Church, VA 22046

We are grateful to all who participated in the zMOD process.

Sincerely,

Debbie Smith - Chair

Carol Turner – Vice Chair

Clyde Miller – Secretary

Michael Melanson – Fairfax Federation Representative

March 2021

Link to ZMOD Slide Presentation used during MDC Membership Meeting March 4th, 2021

zMOD Issues & Responses (wordpress.com)

These slides review several of the controversial proposed zoning changes being made by the county, the planning commission's recommendations on several of the proposals, and concerns expressed by homeowners and residents about the proposed changes.

February 2021

Our next MDC virtual meeting will be Wednesday, March 3rd at 7pm. A meeting link and dial-in numbers will be forwarded in a separate email. All members of your neighborhoods are welcome to participate.

The main item on the agenda will be a review of the County’s project to update/modernize the zoning ordinance – ZMOD. We wrote to you previously about some of the more substantive proposals in the county’s ZMOD draft that have the potential to seriously impact single family neighborhoods. Since then, there was a 5.5 hour Planning Commission ZMOD public hearing in which we participated. We thank all of you who wrote and spoke as well. Due to the volume of speakers and questions and concerns presented, the Planning Commission deferred a decision on ZMOD until Feb 24th. The Board of Supervisors is currently scheduled to hold its ZMOD public hearing on Tuesday, March 9th. We hope you and your communities will consider submitting comments after our meeting.

Also related to ZMOD, county residents concerned about several ZMOD proposed zoning changes have created a survey which they asked us to share. Feel free to circulate the survey. https://www.surveymonkey.com/r/FFXZMOD

We will also have a brief update on the expansion of Justice H.S. and a plan to construct a school parking lot in nearby Justice Park which is under discussion between Fairfax County Public Schools and the Fairfax County Park Authority.

Looking forward to a good meeting on March 3rd.

Sincerely,

Debbie Smith

Carol Turner

Clyde Miller

Michael Melanson

January 28, 2021

Mason District Council Board Testimony to Planning Commission at Public Hearing re: ZMOD

Dear Commissioner Murphy and Planning Commissioners:

Quality of life in our residential neighborhoods is key to Fairfax County’s economic success. If Fairfax County hopes to attract and retain the skilled workforce that is essential to its economic success, the county must protect and preserve established, safe, and livable residential neighborhoods. The appeal of our neighborhoods will determine whether current homeowners remain and whether new families choose to live here.

One purpose of the zoning ordinance is to protect residential communities from incompatible development. Alarmingly, ZMOD proposes to dissolve essential community protections at the same time dashing the means by which citizens are empowered to protect their neighborhoods. The Board of MDC is concerned that ZMOD's changes to ordinance regulations will degrade the quality of home life for residents to the point of impeding economic success as our current and future workforce looks for family-friendly neighborhoods elsewhere.

ZMOD's expansive proposals for new home businesses promise to commercialize our neighborhoods with activities that have no place in residential communities, including unlimited retail sales outlets that would allow residents to sell anything legal to sell, and small-scale production facilities allowed to manufacture anything legal to make. Retail sales and sales of goods manufactured would be limited to the Internet, but customers would be allowed on site to shop, and suppliers, sales people, and aficionados of the craft would be allowed on site as well.

Health and exercise facilities would be allowed any activity arguably related to that topic. All these new uses would be allowed by-right with administrative permits. There would be no limits on hours of operation and no limit on the equipment used on-site. While air compressors and pneumatic tools throbbing through the evening may be acceptable to the county, we are certain that they would not be acceptable to the affected neighbors.

And the county would have no authority to inspect any home business. If a neighbor lodged a complaint with Department of Code Compliance about an activity of concern at the business next door, DCC would have no right to inspect the property. The current ordinance gives the county the right to inspect every home business, either by ordinance language or by provisions in special permits. ZMOD unbelievably would relinquish this authority, presumably with the notion that the county should have no role whatsoever in assuring that home businesses comply with regulations. And that's unacceptable!

ZMOD's proposals for home businesses are simply out of bounds and should not be accepted.

ZMOD proposes expansive new floor area in enclosed freestanding structures, perhaps to house the new home businesses. Today these structures are limited to one in number not to exceed 200 sq ft in area. However, ZMOD proposes to allow any number of enclosed structures with a total floor area up to 50% of the gross floor area of the dwelling unit. In the yard of a modest 2000 sq ft home, 1000 sq ft of accessory buildings would be allowed. Included could be structures up to 12 ft tall within 5 ft of the property line - potential workshops for home businesses just five feet away from the neighbor's yard. In an April 23, 2019 public briefing, staff illogically justified allowing 12 ft structures within 5 ft of neighbors based on their analysis of building location errors and DCC complaints that showed such structures to be a frequent source of resident complaints. The reasoning was that the new 12-ft/5-ft rule would make the structures legal and complaints would vanish. Logically, of course, the data show that the structures are annoying to neighbors and the 12-ft/5-ft rule should not be adopted. Enclosed freestanding accessory structures should be limited to one building not to exceed 200 sq ft with additional buildings and floor area available by special permit.

The accessory living unit proposal is simply careless. One can understand an interest in increased flexibility in ALU regulations as a means for increasing the housing supply. But it is not helpful to promote them as affordable housing when they would not be designated as such and much of the evidence nationwide is that ALU's more frequently are offered at market-rates. In addition, it is not helpful to promote them as a principal untapped opportunity for new housing when all evidence tells us that the demand for them is light. And it is not helpful to propose to strip ALU regulations away and then wait to see what happens hoping that what happens doesn't happen next door to your home. When Chairman McKay was asked to justify the pressure on changing ALU regulations, he is quoted as saying it would be a way to legalize the existing un-permitted accessory dwelling units in the county today. That answer, like the justification for the 12-ft/5-ft rule, is no justification for changing the zoning ordinance.

Changes to ALU regulations should be thought through. Unintended consequences should be identified and mitigated. Until that happens, ALU regulations should not be changed.

Among email conversations with other residents, the principal question is WHY? Why are residents being dragged thru this blizzard of draconian proposals to upset the zoning ordinance in the midst of the pain and dislocations of the Covid pandemic? Is it to promote the economic success of the county? In all of the documents we have read and briefings attended, we have encountered not a single word that associated a ZMOD proposal with economic success. None.

Nothing has been offered to indicate that ZMOD regulations changes would contribute to anything except change itself. Supervisors have allowed ZMOD to become a political exercise to demonstrate their willingness to rollback regulations and push residents out of the land use management process. At the same time, they are distracting the community's attention and sapping its strength under the worst possible circumstances.

Legal opinion has determined that rewriting the county’s zoning ordinance far exceeds the boundaries the Governor has established regarding business that may be conducted by public bodies meeting electronically during the pandemic emergency. At the same time, informed residents clearly are opposed to ZMOD’s proposed regulation changes. The MDC Board believes now would be the right time to table the changes, take time to think them through, and defer next steps until such time as the pandemic emergency is behind us and the normal ordinance amendment process with staff reports and public hearings is reestablished.

Sincerely,

Debbie Smith – Chair

Carol Turner – Vice Chair

Clyde Miller – Secretary

Michael Melanson – Fairfax Federation Representative

January 19, 2021

Dear MDC Members,

We hope you and your associations will consider weighing in on several significant zoning changes being proposed by Fairfax County as part of the Zoning Ordinance Modernization Project (zMOD). Some primary concerns include 1) relaxing regulations for interior accessory apartments (ALUs) which could allow apartments in any single family detached home and 2) relaxing regulations to allow more Home Based Businesses (HBB) with increased customer activity in all types of dwellings. The county is also proposing to eliminate the public hearing process which has historically accompanied applications for each of these uses and approve them instead, through a simple administrative permit without notifying or seeking input from neighbors. These proposed changes have sparked concern about impacts on the character of single-family detached communities and increased commercialization in all residential neighborhoods.

Use this link https://www.act4fairfax.net/communityresponses to see sample letters and resolutions from around the county which you or your associations can support and endorse or use to draft separate letters and resolutions. In particular, is the remarkably, comprehensive commentary about zMOD changes by MDC Secretary, Clyde Miller on behalf of his citizens association Holmes Run Valley.

Please write. Every letter is important. It doesn’t have to be long.

The Planning Commission will hold a Virtual Public Hearing about the proposed zoning changes on Thursday, January 28, 2021 at 7:30 p.m.

To speak at the Planning Commission Virtual Hearing or to submit video testimony, please sign up here: https://wwwfairfaxcounty.gov/planningcommission/speaker and also see here: https://www.fairfaxcounty.gov/planningcommission/ways-to-provide-public-hearing-testimony

You can also write to all members of the Board of Supervisors and the Planning Commission with your thoughts and concerns at: clerktothebos@fairfaxcounty.gov and plancom@fairfaxcounty.gov and reference “zMOD” in the subject line. Please sign your name and include your address in the correspondence.

Sincerely,

Mason District Council of Community Associations Board

Debbie Smith - Chair

Carol Turner – Vice Chair

Clyde Miller – Secretary

Michael Melanson – Fairfax Federation Representative

June 8, 2020

IMPORTANT - PROPOSED ZONING CHANGES BY THE COUNTY re: ACCESSORY DWELLINGS

WATCH - Concerned Planning Commissioners Hear County's Prpopsed Changes for Accessory Dwellings and Home Businesses on May 7th: http://video.fairfaxcounty.gov/player/clip/1708?view_id=10

GOOD RESOURCE - Paper on the county's proposed changes to weaken restrictions on Accessory Dwelling Units and Home Businesses prepared by MDC Board member Clyde Miller, President of Homes Run Valley Citizens Association: https://holmesrun.files.wordpress.com/2020/05/20200420_zmod_adu_hhb_revc.pdf.

October 15, 2020

Concerns About ZMOD

Since we last posted here in the spring (see below) about concerns with proposed zoning changes being included in the County’s zoning ordinance modernization project, zMOD, the County has completed a consolidated zoning ordinance draft document.

Across the County, concern is growing – especially over proposed zoning changes related to single family neighborhoods– mainly changes to accessory apartments within single family detached homes and changes easing limitations on home based businesses operating in any type dwelling.

A survey on these two issues was also completed by the County. Results showed strong opposition to changes loosening limitations and restrictions like eliminating public notice/hearings and allowing increased business activity in homes. See County Survey Results.

Other District Council’s and associations in the County are now producing their own summaries about these issues. We want to share this excellent summary from Sully District Council in the western portion of Fairfax County:

http://www.sullydistrict.org/references/20201005_JSDLU&TCLettertoHOAsReMajorImpacts.pdf

You, your association and neighbors are urged to write to county representatives to express your opinion on these zoning proposals which have the potential to have serious impacts on neighborhoods. County officials need to know where you stand.

Contact Information:

Please reference “zMOD” in your email subject line.

Board of Supervisors - clerktothebos@fairfaxcounty.gov

Planning Commission – plancom@fairfaxcounty.gov

Dept of Planning and Development - dpdzmodcomments@fairfaxcounty.gov

June 8, 2020

Dear Neighbors,

While undertaking a project to modernize and better organize the Fairfax County Zoning Ordinance (zMOD), county staff has proposed sweeping and controversial amendments to regulations pertaining to accessory dwelling units (ADUs). The MDC Board believes that the proposed changes are detrimental to the welfare of single-family home communities and should not be adopted.

What’s an ADU? An ADU is a dwelling unit limited to two bedrooms and two occupants, complete with a full kitchen, that may be constructed as an accessory to any single-family detached home. Currently, on lots less than 2 acres, the ADU must be inside the house, (an interior ADU). On lots larger than 2 acres, the ADU may be interior or standalone (an exterior ADU). There can be only one ADU on a property and the homeowner is required to live on the property. The interior ADU effectively turns the single-family home into a duplex. The standalone ADU adds a second home to the property.

Current ADU Regulations. ADUs were introduced into the zoning ordinance some time ago as a housing option for older and/or disabled residents, in particular, family members of the property owner who are either disabled or at least 55 years of age in general need of monitoring and support. Today, the approval of both interior and exterior ADUs requires a special permit, a process that assures transparency and some measure of compatibility of the ADUwith the community. Neighbors receive notice in the mail that an ADU application has been filed, and sign boards are posted on the property with the same message. A public hearing is held before the Board of Zoning Appeals (BZA) to provide neighbors an opportunity to state and resolve their concerns, and the BZA is required to make a determination that the ADU would be compatible with the character of the neighborhood. The BZA is an independent body appointed by the Circuit Court.

Proposed Amendments. The zMOD program is proposing to:

Delete the requirement that one or both occupants of the ADU must be either disabled or at least 55 years of age.

Current regulations stipulate that occupants of a single-family detached home may include no more than 4 people unrelated by blood or marriage. The proposed regulations would allow conversion of single-family homes with 4 unrelated people and one kitchen into duplexes with 6 unrelated people and 2 kitchens.

Proposed changes also include eliminating the required special permit and the entire public hearing process for a routine administrative permit instead.

Concerns. One concern is the likelihood that the amendment would encourage a proliferation of boarding houses - a blight that the county has not been able to manage.

A second concern is the option that the amendments would provide developers to tear down homes in single-family neighborhoods and build duplexes in their place.

Perhaps a greater concern is the amendment’s intention to eliminate the special permit requirement for interior ADUs. This change would eliminate all of the protection against incompatible development that the special permit process provides communities. There would be no notification to neighbors of the intention to install an interior ADU, no BZA hearing for resolving community concerns, and no independent determination by the BZA that an interior ADU would not damage the character of the neighborhood. Communities would be left defenseless.

And finally, allowing single-family dwellings to be converted into multi-family dwellings will create an increase in population in areas not planned for such density. Without adequate planning and funding for essential infrastructure to support potential new residents there will be severe impacts on parking, traffic, schools, parks, hospitals, government services and utilities.

Conclusion: The MDC Board supports the current ADU regulations that are focused on providing housing for older and/or disabled residents and are approved by special permits. The Board does not support the proposal to drop the age/disability requirement and opposes in the strongest possible terms the proposal to drop the special permit requirement

Engage: Even though the County’s online surveys have closed, the County is still accepting public comment. Their short videos on accessory dwellings and home based businesses can be viewed here: zMOD website. You can send your questions and submit feedback on all aspects of zMOD, including on accessory dwelling units and home-based businesses, to the County Planning and Zoning Department, the Board of Supervisors and the Planning Commission at: DPZZMODComments@fairfaxcounty.gov; clerktothebos@fairfaxcounty.gov; plancom@fairfaxcounty.gov.

Sincerely,

The Board of Mason District Council of Community Associations

Debbie Smith – Chair

Carol Turner- Vice Chair

Clyde Miller – Secretary

Debbie Fraser – Treasurer

Jennifer Abdelmalek – Fairfax Federation Representative

May 7th, 2020

WATCH - Concerned Planning Commissioners Hear County's Prpopsed Changes for Accessory Dwellings and Home Businesses http://video.fairfaxcounty.gov/player/clip/1708?view_id=10

April 22, 2020

IMPORTANT - ACCESSORY DWELLING UNITS COUNTY PROPOSED CHANGES

Dear MDC Members,

While undertaking a project to modernize and better organize the Fairfax County Zoning Ordinance (zMOD), county staff has proposed sweeping and controversial amendments to regulations pertaining to accessory dwelling units (ADUs) with the stated objective of increasing the supply of affordable housing. The MDC Board believes that the proposed changes are detrimental to the welfare of single-family home communities and should not be adopted.

Current ADU Regulations. ADUs were introduced into the zoning ordinance some time ago as a housing option for older and/or disabled residents, in particular, family members of the property owner who are either disabled or at least 55 years of age in general need of monitoring and support. Today, the approval of both interior and exterior ADUs requires a special permit, a process that assures transparency and some measure of compatibility of the ADU with the community. Neighbors receive notice in the mail that an ADU application has been filed, and sign boards are posted on the property with the same message. A public hearing is held before the Board of Zoning Appeals (BZA) to provide neighbors an opportunity to state and resolve their concerns, and the BZA is required to make a determination that the ADU would be compatible with the character of the neighborhood. The BZA is an independent body appointed by the Circuit Court.

Proposed Amendments. The zMOD program is proposing to:

Change the intent and purpose of ADUs from housing for the elderly and disabled to a mechanism ostensibly for providing affordable housing. In fact, the proposal does nothing to ensure affordability, and simply deletes the requirement that one or both occupants of the ADU must be either disabled or at least 55 years of age.

Proposed changes also include eliminating the required special permit and the entire public hearing process for a routine administrative permit instead.

Concerns. One concern is the likelihood that the amendment would encourage a proliferation of boarding houses - a blight that the county has not been able to manage.

A second concern is the option that the amendments would provide developers to tear down homes in single-family neighborhoods and build duplexes in their place.

Engage: You can find the zMOD accessory dwelling unit video and the survey at https://www.fairfaxcounty.gov/planning-development/zmod. The video is under the heading VIDEOS and the survey under SURVEYS. Please encourage your membership to engage and respond to the survey.

Thank you.

The Board of Mason District Council of Community Associations

Debbie Smith – Chair

Carol Turner- Vice Chair

Clyde Miller – Secretary

Debbie Fraser – Treasurer

Jennifer Abdelmalek – Fairfax Federation Representative