Petition for Writ of Certiorari — Voorhees v. Board of Zoning Appeals of Fairfax County (No. 07-383)

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07-383SEP19 20007

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IN THE

SUPREME COURT OF THE UNITED STATES

DAVID H. and CATHERINE M. VOORHEES,

husband and wife,

Petitioners

BOARD OF ZONING APPEALS OF FAIRFAX COUNTY,

EILEEN M. McLANE,

FAIRFAX COUNTY ZONING ADMINISTRATOR, PJB

LLC, PFK LLC and HALL HOLLIN LLC,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE VIRGINIA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

David H. and Catherine M. Voorhees

029 Washington Road

Alexandria. Virginia 22308

(703) 765-7551

Questions Presented

l. Whether a zoning ordinance confers a property right,

which requires public notice and a public hearing, on

adjacent property owners prior to allowing development that

increases the current density of the zoned area beyond that

allowed by the zoning classification.

2. Whether the burden of proof was properly assigned

to Petitioners who wanted to maintain the existing character

and use of the land (i.e., density) to disprove unsupported

assertions made by Fairfax County staff stating that the

neighborhood’s density could be increased without notice or

a public hearing.

2 Whether the due process clause of the 14"

Amendment of the U.S. Constitution would be violated when

a group of neighboring property owners are precluded from

individually representing themselves pro se at a circuit court

hearing of an appeal of a Board of Zoning Appeals’ decision.

4. Whether it is a violation of the 14"" Amendment due

process clause for the Board of Zoning Appeals to limit the

scope of an appeal of a Zoning Administrator’s interpretation

of a zoning regulation, which requires all other regulations of

the zoning ordinance to be satisfied, by refusing to address

Petitioners’ appealed issues.

LIST OF PARTIES

All parties do not appear in the caption of the case on the

cover page. A list of all parties to the proceeding in the court

whose judgment is the subject of this petition is as follows:

Concerned Citizens of Hollin Hall Village,

Mark and Nancy Welch, husband and wife,

Joan T. Coe,

Eugene A. Groshong,

Melvin and Robin Smith, husband and wife, and

James and Karen Stein, husband and wife.

TABLE OF CONTENTS

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eG Mia ccisnscaascasacehenigcinceighipaincucsadlansentelideniialniehviueiien’ 2

CONSTITUTIONAL PROVISIONS, STATUTES,

ORDINANCES AND REGULATIONS .....00 ee 2

Fe ee Ce EE SOR irainitrecrecsnetsiinsntintbcinieniiotns 9

REASONS FOR GRANTING THE WRIT......0.00. 11

I. Adjacent Property Owners have a constitutionally-

protected property interest in maintaining the density

of their Zoning Classification ...........-cccccccsrcrecessescceseecenceorse 13

If. Unfair Assignment of Burden of Proof. ..................... 23

Ili. Pro Se Petitioners Are Entitled To The Same

Considerations As Those Represented By Counsel.......... 24

[V. Limiting The Scope Of Review To A Narrow Issue

Framed By Fairfax County Staff And Ignoring Important

Issues Raised By Adjacent Property Owners Is A

Violation Of Their Substantive Due Process Rights......... 27

SLE SOR SOLOS TELA INL OSS LOTR REE. 30

INDEX TO APPENDICES

Appendix A — January 31, 2006 Transcript Of Board Of

Zoning Appeals’ Motion Upholding The Zoning

Administrator's Decision.

Appendix B — Zoning Administrator's Determination.

Appendix C — Final Order from the Fairfax County Circuit

Court Entered October 13, 2006 Denying Petitioners’ Prayer

for Relief in the Petition for Writ of Certiorari.

Appendix D — Decision of Supreme Court of Virginia

Denying Review.

Appendix E — Decision of Virginia Supreme Court Denying

Rehearing Petition.

Appendix F- Fairfax County Circuit Court Order Entered

July 14, 2006 Requiring Petitioners To Be A Pro Se Party.

Appendix G — Fairfax County Circuit Court Order Entered

October 6, 2006 Stating That Catherine M. Voorhees Will

Continue In The Case As A Pro Se Petitioner.

Appendix H - Petitioners’ Application for Appeal.

Appendix I ~ Hollin Hall Village Neighborhood.

Appendix J — Comprehensive Plan Excerpts

TABLE OF AUTHORITIES CITED

Cases Page

Creative Environment v. Estabrook

680 F.2d 822 (C.A.1 (Mass.) 1982)... eee eeeees 27

Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309,

Ee Bis ee OE evitinnnctedsiendeidaiatinceiansasieevivanen 22

First Union Mortg. Corp. v. Frempong

744 A.2E S27 (Pa. Seaper. 1999).........0cccccoserccesevorseeseeees 25

Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983,

ef 7 | Re 9,11

Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594,

Fe Bs Ne ee EE eetiisnicensteninnsneipamtaicntleaminetuies 25

Hail v. Planning Board, 2 Conn. App. 49, 52, 475 A.2d

1114 [cert. granted, 194 Conn. 805, 482 A.2d 710

(appeal dismissed March 5, 1985)]............ eelaaagiaa 12

Hoke v. Moyer

DOS Fae Ge HF lig COTS? cvigrasinctererscienisvnsesniores 9,12

Horn v. County of Ventura, 24 Cal.3d 605,

FS es FOU BOP irctciccrsvsdacecceccnsmrenens 9,12

Love v. National Bank

205 Va. 860, 140 S.E.2d 650 (1965)........0.. ee 24

PFZ Properties, Inc. v. Rodriguiez

2 Ee a TT ak oe, | Ree nn eRe 12

South Hollywood Hills Citizens Ass'n v. King County

677 P.2d 114, 101 Wn 2d 68 (1994)... ee. 12

Triffen v. Janssen

426 Pa.Super. 57, 626 A.2d 571, 573 (1993)............ 25

Village of Euclid, Ohio v. Ambler Realty Co., 272

U.S. 365, 47 S. Ct. 114, 71 L.Ed. 303 (1926).......... 1]

Constitutional Pr*~ision

So a eo 9, 27, 30

Statutes

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Ordinances

1978 Fairfax County Zoning Ordinance Regulations

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IS FE Fe iwistisinnssisadncdtekentiliiaeaeauee 11

FER EF, Ss BOI vst ncisseicanicgecasstasbincatiicesttaceegeten ine aie 29

Fairfax County Comprehensive Plan..................... 17, 18, 19

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari issue to

review the judgment below.

Opinions Below

This petition seeks review of a Fairfax County, Virginia

Circuit Court Final Order that affirmed the decision of the

Board of Zoning Appeals (BZA) and denied Petitioners’

prayer for relief. A timely appeal was filed at the Supreme

Court of Virginia. The Supreme Court refused to hear the

Petition For Appeal on May 8, 2007. A Petition for

Rehearing was timely filed by Petitioners. However, the

prayer of the petition was denied on June 22, 2007. This

petition is filed within 90 days of that date as provided under

Rule 13.

No opinion was rendered by either of the lower courts.

Thus, no decision has been reported. The transcript of the

BZA’s Motion upholding the Zoning Administrator's

determination is reprinted at Appendix A. The Zoning

Administrator’s determination appears at Appendix B. The

Final Order of the Fairfax County Circuit Court is reprinted

in Appendix C. The Supreme Court of Virginia denials are

reprinted at Appendix D and Appendix E.

Jurisdiction

The date on which the highest state court decided our case

was May 8, 2007. A timely Petition for Appeal was filed at

the Supreme Court of Virginia, which was refused, and a

timely petition for rehearing was denied on June 22, 2007, as

shown in Appendix E.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1257(a).

Constitutional Provisions, Statutes, Ordinances And

Regulations Involved In The Case

XIV Amendment of the U.S. Constitution

Section |. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside. No

state shall make or enforce any law which shail abridge the

privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Code of Virginia Statutes:

§ 15.2-2261 - Recorded plats or final site plans to be valid

for not less than five years.

C. For so long as the final site plan remains valid in

accordance with the provisions of this section, or in the case

of a recorded plat for five years after approval, no change or

amendment to any local ordinance, map, resolution, rule,

regulation, policy or plan adopted subsequent to the date of

approval of the recorded plat or final site plan shall adversely

affect the right of the subdivider or developer or his

successor in interest to commence and complete an approved

development in accordance with the lawful terms of the

recorded plat or site plan unless the change or amendment is

required to comply with state law or there has been a

mistake, fraud or a change in circumstances substantially

affecting the public health, safety or welfare.

E. The provisions of this section shall be applicable to all

recorded plats and final site plans valid on or after January 1,

1992. Nothing contained in this section shall be construed to

affect (i) any litigation concerning the validity of a site plan

pending prior to January 1, 1992, or any such litigation

nonsuited and thereafter refiled; (ii) the authority of a

governing body to impose valid conditions upon approval of

any special use permit, conditional use permit or special

exception; (iii) the application to individual lots on recorded

plats or parcels of land subject to final site plans, to the

greatest extent possible, of the provisions of any local

ordinance adopted pursuant to the Chesapeake Bay

Preservation Act (§ 10.1-2100 et seq.); or (iv) the application

to individual lots on recorded plats or parcels of land subject

to final site plans of the provisions of any local ordinance

adopted to comply with the requirements of the federal Clean

Water Act, Section 402 (p.) of the Stormwater Program and

regulations promulgated thereunder by the Environmental

Protection Agency. (Code 1950, §§ 15-789, 15-967.10;

1952, c. 333; 1962, c. 407, § 15.1-475; 1964, c. 498; 1975, c.

641; 1977, c. 10; 1978, c. 283; 1979, c. 111; 1980, c. 73;

1986, c. 483; 1989, cc. 471, 495; 1990, c. 171; 1992, c. 843;

1993, c. 846; 1996, c. 353; 1997, c. 587.)

§ 15.2-2284 - Matters to be considered in drawing and

applying zoning ordinances and districts.

Zoning ordinances and districts shall be drawn and applied

with reasonable consideration for the existing use and

character of property, the comprehensive plan, the suitability

of property for various uses, the trends of growth or change,

the current and future requirements of the community as to

land for various purposes as determined by population and

economic studies and other studies, the transportation

requirements of the community, the requirements for

airports, housing, schools, parks, playgrounds, recreation

areas and other public services, the conservation of natural

resources, the preservation of flood plains, the preservation

of agricultural and forestal land, the conservation of

properties and their values and the encouragement of the

most appropriate use of land throughout the locality. (Code

1950, §§ 15-821, 15-968.4; 1962, c. 407, § 15.1-490; 1966,

c. 344; 1974, c. 526; 1978, c. 279; 1981, c. 418; 1983, c.

530; 1989, cc. 447, 449; 1997, c. 587.)

§15.2-2307 - Vested rights not impaired; nonconforming

uses.

Nothing in this article shall be construed to authorize the

impairment of any vested right. Without limiting the time

when rights might otherwise vest, a landowner's rights shall

be deemed vested in a land use and such vesting shall not be

affected by a subsequent amendment to a zoning ordinance

when the landowner (i) obtains or is the beneficiary of a

significant affirmative governmental act which remains in

effect allowing development of a specific project, (11) relies

in good faith on the significant affirmative governmental act,

and (ili) incurs extensive obligations or substantial expenses

in diligent pursuit of the specific project in reliance on the

significant affirmative governmental act.

§15.2-2314 - Certiorari to review decision of board.

Any person or persons jointly or severally aggrieved by any

decision of the board of zoning appeals, or any aggrieved

taxpayer or any officer, department, board or bureau of the

locality, may file with the clerk of the circuit court for the

county or city a petition specifying the grounds on which

aggrieved within 30 days after the final decision of the

board.

Upon the presentation of such petition, the court shall allow

a writ of certiorari to review the decision of the board of

zoning appeals and shall prescribe thcrein the time within

which a return thereto must be made and served upon the

realtor’s attorney, which shall not be less than 10 days and

may be extended by the court. The allowance of the wnt

shall not stay proceedings upon the uecision appealed from,

but the court may, on application, on notice to the board and

on due cause shown, grant a restraining order.

The board of zoning appeals shall not be required to return

the original papers acted upon by it but it shall be sufficient

to return certified or sworn copies thereof or of the portions

thereof as may be called for by the writ. The return shall

concisely set forth such other facts as may be pertinent and

material to show the grounds of the decision appealed from

and shall be verified.

If, upon the hearing, it shall appear to the court that

testimony is necessary for the proper disposition of the

matter, it may take evidence or appoint a commissioner to

take evidence as it may direct and report the evidence to the

court with his findings of fact and conclusions of law, which

shall constitute a part of the proceedings upon which the

determination of the court shall be made. The court may

reverse or affirm, wholly or partly, or may modify the

decision brought up tor review.

In the case of an appeal from the board of zoning appeals to

the circuit court of an order, requirement, decision or

determination of a zoning administrator or other

administrative officer in the administration or enforcement of

any ordinance or provision of state law, or any modification

of zoning requirements pursuant to § 15.2-2286, the findings

and conclusions of the board of zoning appeals on questions

of fact shall be presumed to be correct. The appealing party

may rebut that presumption by proving by a preponderance

of the evidence, including the record before the board of

zoning appeals, that the board of zoning appeals erred in its

decision. Any party may introduce evidence in the

proceedings in the court. The court shall hear any arguments

on questions of law de novo. ...

(Code 1950, §§ 15-834 through 15-839, 15-850, 15-958.11;

1950, p. 176; 1962, c. 407, § 15.1-497; 1975, c. 641; 1988, c.

856; 1994, c. 705; 1996, c. 450; 1997, c. 587; 2001, c. 422;

2003, c. 568; 2005, cc. 625, 677; 2006, c. 446.)

Fairfax County Zoning Ordinance Regulations

1-200 PURPOSE AND INTENT

The Zoning Ordinance of Fairfax County, Virginia, is

intended to promote the health, safety and general welfare of

the public and to implement the adopted comprehensive plan

for the orderly and controlled development of the County.

2-405 Permitted Reduction in Lot Size Requirements for

Certain Existing Lots

l. If a lot was recorded prior to March 1, 1941, or if a

lot was recorded prior to the effective date of this Ordinance,

and said lot met the requirements of the Zoning Ordinance in

effect at the time of recordation, then such lot, either as a

single lot or in combination with other such lots pursuant to a

Building Permit, may be used for any use permitted in the

zoning district in which located under this Ordinance even

though the lot(s) does not meet the minimum district size, lot

area, lot width and/or shape factor requirements of the

district, provided all other regulations of this Ordinance can

be satisfied.

This provision shall not apply to any such lot which,

subsequent to the effective date of this Ordinance, is rezoned

at the request of the owner or his agent or is subdivided

by the owner or his agent, except for:

A. A subdivision resulting from a voluntary dedication

by the owner or a condemnation or acquisition of a portion

thereof for public purposes by any governmental agency; or

B. A subdivision for a minor adjustment of lot lines,

which may be permitted by the Director in accordance with

Chapter 101 of The Code and the following:

(1) Such subdivision shall only be to consolidate land

area of contiguous lots, or to rearrange lot lines in order to

reallocate land area between contiguous lots such that the

reconfigured lots contain either the same lot area as existed

prior to the adjustment of the lot lines or a greater area than

existed prior to the adjustment of the lot lines which results

in a reduced number of lots; and

(2) There shall be no additional lots or outlots created, no

increase in the maximum density and the resultant lot lines

shall not create any new or aggravate any existing

noncompliance with regard to minimum lot area, lot

width, shape factor or minimum yard requirements.

2-601 Limitation on the Removal and Addition of Soil

No soil shall be removed from or added to any lot in any

zoning district except in accordance with one of the

following provisions:

3. Grading of land shall be permitted in accordance with

a grading plan approved by the Director. The Director shall

determine that the amount of soil removal or fill and

proposed grading is necessary for the establishment of a use

permitted in the zoning district in which located, and that the

grading plan shall provide for even finished grades which

mect adjacent properties’ grades and do not substantially

alter natural drainage,

2-602 Drainage, Floodplains, Wetlands and Resource

Protection Areas

:, Notwithstanding the provisions of Sect. 601 above,

no building shall be erected on any land and no change shall

be made in the existing contours of any land, including any

change in the course, width or elevation of any natural or

other drainage channel, in any manner that will obstruct,

interfere with, or change the drainage of such land, taking

into account land development that may take place in the

vicinity under the provisions of this Ordinance, without

providing adequate drainage in connection therewith as

determined by the Director in accordance with the provisions

of the Public Facilities Manual.

3-301 Purpose and Intent

The R-3 District is established to provide for single family

detached dwellings at densities set forth in Sect. 308 below;

to provide for affordable dwelling unit developments; to

allow other selected uses which are compatible with the low

density residential character of the district; and otherwise to

implement the stated purpose and intent of this Ordinance.

3-308 Maximum Density

1. Conventional subdivisions: Three (3) dwelling units per

acre.

17-104 Uses Exempt from a Site Plan or a Minor Site Plan

Unless otherwise required by proffered conditions or

development conditions of an approved rezoning, special

permit, special exception or variance, the following uses

shall not be subject to the requirement for a site plan or a

minor site plan. Such uses, however, shall still be subject to

all other applicable provisions of this Ordinance, the Public

Facilities Manual and The Code.

1. Single family detached dwellings and their related

accessory uses and structures.

Statement of the Case

From the very beginning of this appeal of the Zoning

Administrator’s decision to allow two houses to be

constructed on a single recorded and taxed lot in the Hollin

Hall Village subdivision’, unreasonable hurdles have been

placed before individual neighboring property owners which

have impeded their right to clearly and effectively present

their complaint for redress. First, many important issues

raised by petitioners in the BZA appeal were never

addressed. Then, the BZA improperly placed the burden of

disproving unsupported assertions made by Fairfax County

staff, which were necessary for the BZA’s decision

upholding the doubling of the density of a current zoned

area. Under Section 1, Amendment XIV of the US.

Constitution, petitioning neighboring property owners are

entitled to due process of law before being deprived of their

property rights.”

Similar to Hoke v. Moyer, the County denied that

they are changing the zoning ordinance. The end result

being that petitioners’ due process nghts were cast aside as

their assertions of Virginia Code Statutes and other County

regulations were not considered by the BZA. Under §15.2-

2314 of the Virginia Code, petitioners were entitled to a

review of the BZA decision. In a July 2006 Order from

Circuit Court the individual petitioners were mandated to

proceed pro se. However, at the October 2006 hearing, the

Circuit Court could not see how a group of pro se

individuals could proceed at the hearing. Thus, the Circuit

Court denied those individual petitioners the opportunity to

speak and present their case at the hearing. Neither the

' See Appendix I.

* Zoning regulations cannot be changed without notice to all affected

property owners. Hoke v. Mover, 865 P.2d 624 (Wyo., 1993), Horn v.

County of Ventura, 24 Cal.3d 605, 165 Cal Rpt. 718 (Cal. 1979), Fuentes

v. Shevin, 407 U.S. 67, 80-81, 92 S.Ct. 1983, 1994, L.Fd.2d 556 (1972).

Circuit Court nor the Supreme Court of Virginia wrote

opinions so those courts did not address the issues raised by

petitioners that the BZA expressly excluded from their

review. This case is significant because as areas reach

maximum build out, local county governments may opt to

assert that there 1s no change to the zoning classification in

order to permit higher density thereby denying the necessary

due process afforded by public notice and a public hearing.

In that Fairfax County staff has stated that there are

more areas with two side-by-side lots with a house built over

the adjoining lot lines, a mixed message is being sent to

County staff that adjacent individual property owners do not

have a property right unless the County decides that they do.

Thus, while petitioners may have been granted procedural

process, the denial of substantive due process prevented any

“meaningful” review or reconsideration of the Zoning

Administrator’s determination. This unconstitutional denial

of due process should be stopped.

In particular, the Virginia Code specifies that zoning

districts shall be established based on the way the land was

developed among other criteria.’ The Code of Virginia only

provides that a recorded subdivision plat is immune from

zoning amendment regulations for a period of five years,

unless diligent pursuit of the recorded subdivision is in

process.”

Hollin Hall Village was zoned after it was completely

developed so that one house being torn down should only be

replaced with one house in order to conform with the Zoning

Ordinance. That is, the one house that is being torn down

conforms with the Zoning Ordinance, while the two new

homes being built in its place do not. The County staff

report recognized that the purpose and intent of the R-3

residential district (“to provide single family detached

‘Va. Code §15.2-2284.

~ Va. Code S15 2-226] and $15.2-2307.

dwelling units at a density not to exceed three (3) dwelling

units per acre” ) cannot be achieved if two new homes

replaced an existing home. (BZA R at 123.) But, it was

their opinion that this regulation conflicted with zoning

regulation 2-405. The BZA _ upheld the Zoning

Administrator's determination and did not address the

Virginia Code statutes and Zoning regulations raised by

petitioners that could not be satisfied in favor of confining its

review to the narrow issue raised by Fairfax County staff.

Reasons for Granting the Writ

This Court has stated: “The constitutional right to be

heard is a basic aspect of the duty of government to follow a

fair process of decisionmaking when it acts to deprive a

person of his possessions.” Fuentes v. Shevin at 80-81.

However, under current law of the BZA, the local governing

body may decide that the property interest of the adjacent

property owner is not as great as another property owner

who is increasing the current density of the zoned area.

The Court should grant review in this case in order to

reinforce the property rights of adjacent property owners and

to resolve a conflict among the state courts concerning the

due process rights of an adjacent property owner. In Village

of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct.

114, 71 L.Ed. 303 (1926), this Court supported zoning

ordinances that were enacted to restrict development so that

the character of the neighborhood and the desirability as a

place to live are not destroyed. The State of Wyoming has

upheld the rights of an adjacent property owner when the

government tried to increase the density of neighboring

* Article 3, $§ 301 and 308 of the Fairfax County Zoning Ordinance.

* References to the Board of Zoning Appeal Record will be cited herein

at(“BZARat __.”)

property.’ The State of California in Horn v. County of

Ventura held that a tentative approval of a subdivision plat

constitutes a substantial or significant deprivation of property

rights of other landowners thereby triggering notice and an

opportunity to be heard. But, the State of Washington

permitted the government to use a technicality to deny a

newly formed organization of adjacent property owners

judicial review of a governmental action which substantially

effected their property rights.* The position of the First

Circuit is that substantive due process guarantees

fundamentally just and fair government action.’

The lower courts will continue to be plagued with

uncertainty when to grant adjacent property owners

substantive judicial review. The Commonwealth of Virginia,

along with other states, does not have a written opinion on

this issue with respect to the increase in density of a

neighborhood. Other courts have held that common sense

must be used in interpreting a zoning regulation.’ Fairfax

County simply states that there is no rezoning or a

subdivision occurring to continually deny adjacent property

owners their substantive due process rights throughout the

judicial review. Consequently, without intervention from this

Court, lower courts may continue to deprive adjacent

property owners notice and due process thereby denying

such aggrieved persons equal protection under the laws to

protect their property interest in maintaining the density of

their zoned neighborhood.

” Hoke v. Mover (Wyo. 1993).

* South Hollywood Hills Citizens Ass'n v. King County, 677 P.2d 114,

101 Wn 2d 68 (1994).

” PFZ Properties, Inc. v. Rodriguiez, 928 F.2d 28, 31 (1“ Cir. 1991).

'° Hall v. Planning Board, 2 Conn. App. 49, §2, 475 A.2d 1114 [cert.

granted, 194 Conn. 805, 482 A.2d 710 (1984) (appeal dismissed March

5, 1985)]

I. Adjacent Property Owners Have A Constitutionally-

Protected Property Interest In Maintaining The Density

Of Their Zoning Classification.

At the Board of Zoning Appeals hearing on January

31, 2006, no less than six individual petitioners raised the

issue of adjacent property owners rights to maintain the

zoned density. However, the BZA did not address the

adjacent property owners property rights in favor of

deferring to the rights of only the property owner to increase

the density of the neighborhood.

Mrs. Walzl testified:

Good afternoon, Mr. Chairman, members

of the board. My name is Gretchen Walzl.

I reside at 7917 New Market Road,

Alexandria, Virginia in the subdivision of

Hollin Hall Village. I speak today on

behalf of the Concerned Citizens of Hollin

Hall Village. My topic, homeowner versus

developer in inequality of the county. The

guidelines are clear when it comes to what

the homeowner may or may not do

pertaining to changes on his property.

With respect to building permits or

variances, Fairfax County has written

directives on procedures to get the job

done. The material presented must be

current. These include plats, structures,

soil samples, and current photos of

property. No previous documentation will

be accepted. Additionally, all surrounding

properties must be notified in writing by

determined by Fair- -- properties

determined by Fairfax County.

Unfortunately, these same directives are

not applied to developers who seem to

move at will through the system with

whatever will make their end result occur,

mainly new buildings. Old unapproved

plats and structures and old ordinances

have been part of this appeal since the

beginning. An example being Attachment

9 from the Fairfax County Staff Report

dated January 24, 2006, whereby tax map

number 102-2-03-0115 so referenced does

not exist in the Fairfax County tax records.

Additionally, there was failure to recognize

the importance of best practices

management of storm water in this sector.

Fairfax County's disregard and

unfamiliarity with its own laws and the

Virginia Code regarding zoning is at the

crux of this matter. It is quite simple,

equal directives for both homeowner and

developer trying to obtain permits on

properties should be the same. The

construction application request to build an

increased density by the developer, thus

creating a de facto R-5 in Hollin Hall

Village without a _ public hearing is

unconscionable. This was not merely a

request to build a new home, but a major

request to change the dynamics of the

neighborhood. At minimal, a_ public

hearing should have been set. Our

concerns are very real, as we purchased

our property with the understanding that

the current zoning regulation R-3 apply.

The homeowners in this neighborhood

purchased their homes because of the trees,

low density, and open space for our

children to play in. If we wanted a higher

density neighborhood, we would have

purchased a home elsewhere. We request

Fairfax County protect our property rights,

as the rights to redevelop this land expired

a long time ago.

(BZA R. at 478.)

Mr. James Stein testified:

Good afternoon. My name is James Stein.

I live at 8039 Fairfax Road in Alexandria,

Virginia, 22308. We are strongly opposed

to subdividing the lots and building two

houses where one previously stood. [ will

briefly address my first concern that was

outlined in the letter to the Board of

Zoning Appeals, and that is flooding. We

have lived in this neighborhood for 18

years. We are on the corner of Fairfax

Road and Lafayette Drive in the lowest

point in the neighborhood. Much of the

storm water from our block drains past our

yard. All of the storm water in the 160

acres of adjacent watershed passes within

100 feet of my property. There are

potentially nine new homes that will

increase the watershed directly to the

easement along my property. In a heavy

rain storm about one inch per hour, each

house will generate 125 cubic feet of storm

water per hour. That's an additional 1,125

cubic feet passing my property per hour,

and more likely, 2,250 cubic feet since

Public Works waived best practices for

storm water management. Since the storm

water management system can not handle

the existing flow in heavy rain, this new

water will pile up and flood my property.

It is bad now, and it will be a disaster if the

subdividing is allowed. Add in the

potential of 100s of large lots in our

subdivision and the others that feed the

watershed across from Fort Hunt Road,

and we are talking about feet of water that

might be arising in adjacent yards. The

two adjacent streams have relatively

narrow channels, and with no real flood

plain to expand into. If the adjacent 160

acres Of watershed are _— similarly

overdeveloped, that one inch per hour rain

will result in a minimum of 60,000 cubic

feet to 120,000 cubic feet of water passing

through channels that are only about 20

feet wide. The 20 feet wide channel is

already at capacity or over capacity in a

heavy rain. And further, due to the

watershed construction downstream, such

as Collingwood Road culverts near Karl

Road, water will back up, and this new

water will pile up on top adding feet of

depth to the floods.

If this subdividing is permitted, many tens

of millions of dollars of storm water

management work would be needed to be

done just to keep the storm water issue

where it 1s today, which is already

insufficient and unacceptable. Since the

water channels are part of the Chesapeake

water shed and are designated resource

protection areas, you can not simply clear

cut and deepen and widen them. Therefore,

you can not permit this increase in housing

density to occur, since you can not manage

the storm water it will create.

(BZA R. 481.)

Mr. Mark Welsh testified:

Good afternoon. My name is Mark Welch

and I live with my wife and three children

at 8036 Washington Road. Five of the six

adjacent properties to mine have been

bought by developers. The Zoning

Administrator's determination would allow

10 houses to be shoehorned in place where

those five houses currently stand. I don't

know if you all live in_ residential

neighborhoods similar to ours, but if you

do, I would ask you to imagine for a

moment what your immediate

neighborhood would look like if five our

your adjacent properties were replaced

with 10 in the same footprint. It's not a

pretty picture, and that's the picture we're

looking at if the Zoning Administrator's

determination is allowed to stand.

I'm going to focus my remarks on how the

administrator's determination is contrary to

the Zoning Ordinance as it relates to the

Fairfax County comprehensive plan on

land use. Now, the stated purpose and

intent of the Zoning Ordinance, and here

I'm quoting from Part 2, Article |, "is to

promote the health, safety, and general

welfare of the public and to implement the

adopted comprehensive plan," and I'll

repeat, "to implement the adopted the

comprehensive plan for the orderly and

controlled development of the county."

If you'll bear with me for one minute, I'm

going to quote several verbatim excerpts

from the comprehensive plan'’, and | think

that'll clearly demonstrate how the results

of the administrator's determination would

be inconsistent with that plan.

On page |, "The pressure to redevelop

existing lower density neighborhoods must

be carefully controlled so as to not

undermine stable neighborhoods. The loss

of neighborhoods can quickly lead to a loss

of a sense of community, a basic facet of a

high quality of life.”

On page 2, "The county's land use policies

Should maintain an attractive pleasant

quality of life for its residents. Densities in

excess of those compatible with these

goals should be discouraged.”

On page 10, "The county should encourage

infill development in established areas that

is compatible with existing land use that is

at a comparable scale with the surrounding

area, and that can be supported by

adequate public facilities and

transportation systems."

Allowing the construction of new houses

that violate the existing minimum lot size

for our R-3 zone neighborhood will

adversely impact the quality of our lives,

as this increased congestion will serve to

"undermine our stable neighborhood,” and

allow tor "densitics incompatible with

existing neighborhood”. Thus, the

comprehensive plan will not be

' See Appendix J.

implemented, as required by Section 2-

405, which requires that all regulations

otherwise be satisfied.

In closing, we've been communicating with

county officials on this issue since the

summer. One of the first terms I've heard

them express was building by right. What

I find ironic is that in the past six months,

we've yet to hear a similar county term or

catchphrase relating to our rights as Fairfax

County taxpayers and citizens to live in an

established neighborhood without being

effectively rezoned by doubling its density.

(BZA R. at 482-483.)

Mr. Melvin Smith testified:

My name is Melvin Smith. My wife Robin

and | have lived at 8048 Fairfax Road in

Hollin Hall Village since 1987. We're

opposed to the plan of rezoning in infill

development because it will severely -- we

feel it will severely impact the character of

our neighborhood and alter our quality of

life. ...

Initially, only four properties were

involved. This number, again based on

information from the Fairfax County

website is now -- has now gone up with

developers and real estate agents in sort of

like a feeding frenzy going around making

offers to any house that sits on one of these

"double lots." Should this rezoning go

forward, approximately -- and this is just

with the current offers, approximately one-

third of the houses in our neighborhood on

Fairfax Road and Washington Roads will

be new at densities far greater than those

permitted by R-3 zoning, and there's no

end in sight. The proposed infill, as Mr.

Stein mentioned, will also greatly

exacerbate an already problematic drainage

situation. Our lot backs onto one of the

tributaries of Littke Hunting Creek. We

have experienced flooding many times

over the last few years where water has

come into the yard. As Mr. Stein says,

these extra houses increases in impervious

surface, will only cause runoff to get

worse, causing an already bad situation to

just get even worse. (BZA R at 483-484.)

Mr. Eugene Groshong testified:

My name is Eugene Groshong. | live at

8060 Fairfax Road, directly across the

street from 8059. My deed indicated that

my house was built on one-and-a-half of

these supposed original lots. I get one tax

bill. It shows one piece of property. I

went yesterday and looked on the website,

there are no dotted lines on the tax

appraiser's websites, they're not there.

And I contend that the mere fact that they

built on one-and-a-half lots, they built

houses straddling two lots, they ignored

the previous subdivision, and in totally

ignoring it, they abandoned it, they gave it

up. They have no -- they retain no rights

whatsoever under that previous subdivision

when they totally abandoned it, and just

totally ignored it. I don't see how you can

come along now and say, well, okay, now

you can do what was allowed 50 years ago

when that was totally ignored at the time.

... As far as any inherent right to do what

they want with their property, I can't tear

down my house and rebuild it. My house

is within 100 feet of a creek, the

Chesapeake Bay Protection Act won't

allow me to do that. So, to say that you

can't take away somebody's right to build

what they want on their property, that's --

that's just simply not so. (BZA R. at 487.)

Mrs. Catherine Voorhees testified:

[U]nder the Code of Virginia, all zoning

regulations shall be uniform for the R-3

District. The regulation 2-405 is an

exception. It only allows you to use one of

those regulations. What you see in the

proposed redevelopment is an _ R-S5

development in an R-3 District. That is

wrong.

What also is very clear is that those lot

lines that you guys believe are etched in

stone no longer exist. You have to have

diligent pursuit to keep the vested right of

that subdivision lot. And if you want to

talk about the fact that there is the

subdivision ordinance and consolidation,

my house is an adjacent house to the

property. It was built in 1948, as most of

these were built in 1947, 1948, and 1949,

before 1950. As you are well aware, all of

these laws in the subdivision ordinance are

prospective, they're not retroactive. You

can not force us to use the subdivision

ordinance after our houses were built. To

say that, gee, back then, they weren't

consolidated, we need to reconsolidate

them again. Like I said, we are zoned R-3,

and ail of the regulations for R-3 should

apply. (BZA R. at 491.)

With respect to land-use matters, this Court has held

that the government may not require a person to give up a

constitutional right in exchange for a discretionary benefit

conferred by the government where the property sought has

little or no relationship to the benefit. Dolan v. City of

Tigard, 512 U.S. 374, 114 S. Ct.2309, 129 L. Ed.2d 304

(1994). Adjacent property owners are being required to give

up their constitutional right to substantive due process

without receiving a benefit from the government when the

adjacent property is increased in density. That 1s, the

government should not be conferring a right unto one

property owner that would destroy the fabric of the

community and the nghts of others in the neighborhood as

described by petitioners’ BZA testimony.

In Hollin Hall Village, the property mghts that the

BZA was concerned with were those of the developer who

purchased a single home on a piece of land. If the County

held that only one house could be built where one house

stood, as petitioners argued at the BZA hearing, the property

owner would not have lost anything because he purchased a

single parcel of land with one house on it. The effect of the

BZA decision is that the adjacent property owners lose their

property interest when the neighborhood is redeveloped at

twice the density. Since the purpose and intent of County

Zoning Ordinance R-3 residential district cannot be met, an

arbitrary and capricious decision was rendered that supports

doubling the density when such ts not within the scope and

purpose of the zoning ordinance.

Despite the testimony recited above and the

paraphrasing of these claims in the Petition for Writ of

Certiorari, the Circuit Court repeatedly questioned

petitioners’ standing and whether they had individual claims.

(See Circuit Court Transcript page 8, lines 4-6, page 22,

line15-24, page 27, line 23-page 29, line 12, page 34, line

20-page 35, line 12). Clearly, the Circuit Court was unaware

of the record below that it was charged to review. The

Circuit Court further held that the individual pro se

petitioners could not represent themselves at the hearing

when the Fairfax County attorney asserted that Mr. Voorhees

has to speak for the group as counsel. Instead of asking Mr.

Voorhees if he wanted time to consult with his clients, the

Court replied that it did not “mean to railroad [Mr.

Voorhees] into this.” (Page 35, line 5 — Page 36, line 8 of

the Circuit Court Transcript.) It was clear to the individual

petitioners that they had no choice but to proceed as the

Court directed at the hearing or else, they would get no

hearing at all. Consequently, the individual property cwners

were denied their constitutionally-protected right to

substantive due process.

The above claims by individual adjacent property

owners were preserved by the objections appended to the

Circuit Order Final Order. (Appendix C) In particular,

objection 6. states “Under the current Subdivision

Ordinance, the Zoning Administrator’s decision is not a by-

right subdivision. It is a resubdivision of a parcel creating a

new lot which requires public notice and public hearing.”

Both the Petition For Appeal and Petition for Rehearing filed

at the Virginia Supreme Court rce-emphasized the objections

appended to the Final Order.

If. Unfair Assignment of Burden of Proof

The burden of proving the factual questions of:

1) Whether the 1943 plat met the legal requirements for

recordation; 2) Whether the 1943 plat met the zoning

requirements at the time of recordation; and 3) Whether the

1943 plat was superseded by the 1946 plat and therefore

subject to the minimum lot size requirements of 1946 (7200

square feet) were improperly placed on_ petitioners.

Objection | appended to the Final Order (Appendix C) and

Assignment of Error numbers | and 5 in the Petition for

Appeal raised the issue of whether the standard of review

was correct. It is manifestly unfair that this burden has been

placed on petitioners after a 60 year lapse of time when

Fairfax County is and was the keeper of Zoning Ordinance

records. This burden should have been placed on Fairfax

County staff who wanted to change the existing character

and use of the land, not the adjacent homeowners of

individual taxed lots who will be left to deal with the mixed

use development sought by Fairfax County. The rights of

the Hollin Hall Village community should be respected and

not trampled upon by those who have no interest in the

welfare of those citizens who make their home in the

community.

It was improper for the BZA to require adjacent

property owners to disprove the County staff's claim when

the means by which the claim could have been disproved

was lost with the lapse of time. Love v. National Bank, 205

Va. 860, 140 S.E.2d 650 (1965). Since all who could have

answered questions |) to 3) in the 1940s are no longer

available, Fairfax County government should not be allowed

to hide behind facts lost with the lapse of time and force

citizens to disprove their claim." Accordingly, the burden of

proof was improperly placed upon petitioners.

Ill. Pro Se Petitioners Are Entitled To The Same

Considerations As Those Represented By Counsel.

While the BZA hearing allowed adjacent property

owners to testify individually, the Fairfax County Circuit

- First Assignment of Error in Appellants’ Petition for Appeal.

Court held the adjacent property owners to a different

standard than those represented by Counsel.’ Following the

Order entered July 14, 2006 mandating that the individual

property owners proceed pro se (Appendix F), all of the

individual property owners entered their appearance when

the Memorandum of Law in Support of the Petition of

Certiorari was filed. Neither opposing side objected to the

Memorandum of Law filed by the adjacent property owners.

However, at the hearing, when asked by the Circuit

Court if there is any practical difference if Mr. Voorhees

represents himself pro se and Mrs. Voorhees represents

herself pro se, counsel for Respondents PFK, LLC; PJB,

LLC; and Hall Hollin LLC replied: “I understand that if

somebody is represented by an attorney, that may have one

effect. If they’re not, then that has another effect.” Most, if

not all jurisdictions in the United States, allow individuals to

represent themselves. The Commonwealth of Pennsylvania

grants pro se litigants the same rights, privileges and

considerations as those litigants represented by an attorney."

Mr. and Mrs. Voorhees made it clear at the hearing

that they were not official counsel and that they were

representing themselves pro se as individuals.

THE COURT: So you’re not representing them as lawyers?

MR. VOORHEES: No, not as their official counsel. We’ve

not been retained as counsel by them. We’re prosecuting

this case on our own behalf. And if they — There are certain

petitioners that may want to add remarks or something to this

case. (See page 7, line 6 — page 8, line 3 of the Circuit Court

transcript.)

'* Unlike the less stringent standard which a pro se litigant was held to in

Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L. Ed 2d 652 (1972),

the Circuit Court stated individua! claims rather than global claims had to

be litigated by each pro se litigant.

'* First Union Morty. Corp. v. Frempong, 744 A.2d 327 (Pa.Super. 1999)

cing /riffen v. Janssen, 426 Pa.Super. 57, 626 A.2d 571, $73 (1993).

‘si

But, the Fairfax County attorney representing the

Zoning Administrator objected to the Voorhees speaking for

the other pro se petitioners immediately after the Voorhees

had clarified that they were not speaking for the other

petitioners. (See page 8, lines 13-23). At the very least, the

Zoning Administrator’s counsel confused the simple issue,

which was that each of the pro se petitioners would have to

represent themselves as already clarified to the Circuit Court.

To which the Court responded: “I don’t see how multiple

parties can present a case as multiple parties.”'” (Page 13,

lines 10-13 of the Circuit Court Transcript.)

This created a chilling effect on the individual

petitioners that were present because if Mr. Voorhees did not

agree to be counsel for the entire group, none of the

attending individual petitioners would have an opportunity to

be heard.'® Prior to being appointed counsel for the entire

group, Mr. Voorhees tried to get each individual petitioner

an opportunity to be heard. But, the Fairfax County attorney

persuaded the Court as follows:

MR. VOORHEES: But, we’re all individual petitioners, as

well.

THE COURT: Well, I’not going to - - I suppose —

Mr. Wynn?

MR. WYNN: Well, I was just going to say that he is now

saying that he’s going to represent everybody. But now he

also wants everybody to represent themselves. I think that

they have to be consistent. Whether you’re going to be the

attorney for these people and speak for all of them, or they

all have to speak for themselves. (Page 34, lines 6-17 of the

Circuit Court Transcript.)

With respect to Ms. Voorhees, the Fairfax County

attorney specifically objected to her participation.

' Yet, the Circuit Court allowed both parties on Respondents side to

argue individually at the hearing.

'’ Mr. Voorhees was an individual petitioner.

MR. VOORHEES: But she’s a petitioner. Can’t she present

evidence?”

THE COURT: No.

MR. WYNN: I would object, Your Honor, to her

participating in the case. (Page 33, line 20 ~ page 34, line 1

of the Circuit Court Transcript.)

The Fairfax County attorney’s objection to Mrs.

Voorhees participation obstructed an individual petitioners’

due process right, as well as substantive due process of the

entire group.'" Is this fair play by government? Is the

participation of the Fairfax County attorney office along with

the rewritten nature of appeal drafted by Fairfax County

staff, legitimate governmental action? Or, is this, as the aM

Circuit stated in Creative Environments, Inc. v. Estabrook,

680 F.2d 822 (C.A.1 (Mass.), 1982): “gross abuse of power,

invidious discrimination, or fundamentally unfair

procedures” when a government action should be reviewed.

Even when the entire group was represented by Mr.

Voorhees, they were denied their due process as Mr.

Voorhees was appointed to limit the number of petitioners

(adjacent property owners) speaking at the hearing to one.

As a result of the Fairfax County attorney’s objection to Mrs.

Voorhees participation, Mrs. Voorhees was denied the

opportunity to present her case. Similarly, Mr. Groshong,

Mr. and Mrs. Welch, Mrs. Stein and Mrs. Walzl were all

denied due process under the 14" Amendment of the U.S.

Constitution.

IV. Limiting The Scope Of Review To A Narrow Issue

Framed By Fairfax County Staff And _ Ignoring

'” Under Va. Code 15.2-2314, petitioners of a BZA appeal are allowed to

present evidence.

'* Ms. Voorhees was the pro bono counsel for the entire group, who

prepared the Petition for Writ of Certiorari, and was involuntarily

removed from this case the Friday before the Tuesday hearing with an

Order stating she could continue to proceed pro se. See Appendix G.

Important Issues Raised By Adjacent Property Owners

Is A Violation Of Their Substantive Due Process Rights.

The Concerned Citizens appealed the Zoning

Administrator’s decision (BZA R. at 030-033) to the Fairfax

County Board of Zoning Appeals. (BZA R. at 008-0042.)

The Concerned Citizens’ appeal was based on a series of

arguments identifying relevant county ordinances and

Virginia Code which refuted the Zoning Administrator’s

decision. The Concerned Citizen’s legal basis for the appeal

of the Zoning Administrator’s decision was set aside and

redrafted by Fairfax County staff into a public notice stating:

“...Appeal of a determination that lots, including the

originally recorded underlying lot lines, met the zoning

requirements at the time of their creation and are, therefore,

buildable lots under Zoning Ordinance provisions.”... (BZA

R. at 082.)

The Concerned Citizens refuted the wording of the

Legal Notice and restated the basis for the appeal and

supplied additional exhibits in support thereof. (BZA R. at

289-336.) The Fairfax County restatement was the antithesis

of the adjacent property owners appealed argument (See

Appendix H.) as the recorded underlying lot lines do not

exist. However, the Board of Zoning Appeals (BZA)

maintained the narrow construction drafted by Fairfax

County staff thereby limiting the scope of the Concerned

Citizen’s hearing. Board Member Hart stated at the January

31, 2006 hearing: “Yes, but, | mean my question to the

validity of these lots. Whether there is a drainage problem in

2006 is not — is not a BZA issue on January 31, 2006.”

(emphasis added) (BZA R. at 477.)

Mr. Hart further stated:

Thank you. Mr. Stein, let me address the

stormwater issue. | don’t mean to belittle

it, and — | - it sounds from the material we

read, it sounds like a there’s a serious

problem in the neighborhood whether or

not new houses are built. Nevertheless, |

think that the narrow question before us

today deals with the validity of these lots

and whether there’s one lot or whatever

that is. The stormwater drainage problem

is not something we’re reviewing.”...

(BZA R. at 482)

Thus, the BZA unfairly limited the appeal of the Zoning

Administrator’s interpretation of Regulation 2-405, which

requires all other regulations of the Zoning Ordinance be

satisfied, by refusing consideration of other requirements

regulated by the Zoning Ordinance including stormwater.’

The BZA’s error was compounded by the Circuit Court as

compliance of 2-405 with other Zoning Ordinance

regulations was ignored and petitioners’ right to have these

issues considered was effectively excluded.

Furthermore, the Fairfax County staff report on the

BZA appeal was not made available to the Concerned

Citizens five days prior to the BZA hearing as required by

the rule, but instead only after requesting the same, was an

electronic copy of the report minus key exhibits provided

less than 24 hours before the BZA hearing. Thus, the

Concerned Citizens were not given the time provided by the

rule, let alone adequate time to prepare a complete response

(defense) to the County’s position. (BZA R. at 470.)

* Article 17, Section 17-104 of the Fairfax County Zoning Ordinance

states that the stormwater requirements of the Public Facilities Manual

must be met. Article 2, Section 2-602 of the Zoning Ordinance requires

“adequate drainage” of the land. Thus, the BZA should have considered

stormwater issues on January 31, 2006, as argued in 30. G of the Petition

for Writ of Certiorari before the Circuit Court. Fourth Assignment of

Error in Appellants’ Petition for Appeal.

Clearly, the lack of having the Fairfax County staff

report to prepare for the BZA hearing and BZA’s framing of

the issue as determined by the Fairfax County staff created

prejudiced petitioners right to be heard in order to protect

their property rights under the due process clause of the 14"

Amendment to the United States. Since the BZA did not

look at all of the regulations of the Zoning Ordinance to see

if they could be satisfied, without an opinion from either the

Circuit Court or the Supreme Court of Virginia, no ruling

was ever made on the issue that petitioners appealed:

“Appeal of the Zoning Administrator’s determination that an

existing, conforming use can be redeveloped into a new non-

conforming use.”

Conclusion

For the reasons stated above, Petitioners, David H.

and Catherine M. Voorhees, respectfully submit that this

Court should grant their Petition for Writ of Certiorari in this

action.

Respectfully Submitted,

Catherine M. Voorhees

and

David H. Voorhees

both of: 8029 Washington Road

Alexandria, VA 22308

703 765-7551

APPENDIX

APPENDIX A

COMMONWEALTH OF VIRGINIA

FAIRFAX COUNTY BOARD OF ZONING APPEALS

MOUNT VERNON DISTRICT

CONCERNED CITIZENS OF HOLLIN HALL VILLAGE

APPEAL APPLICATION A 2005-MV055

Fairfax, Virginia

Tuesday, January 31, 2006

MR. HART: Thank you. On

application no. A-2005-MV-055 by Concerned

Citizens of Hollin Hall Village, | move that

the board make the following findings of fact

in conclusions of law.

First, | would thank all the

speakers for coming out and their patience

today. We had a long agenda with a lot of

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issues, and I'm sorry that we can't do

everything sometimes as quickly as we would

like to, but | wanted to compliment you all

on your involvement and interest in this

matter.

What's before us today, although, |

think this is the first time we've seem

something presented like this, is a fairly

common issue in Fairfax County. After the

1978 Zoning Ordnance, there are many existing

subdivisions where the lots, for whatever

reason, do not meet a current Zoning Ordnance

requirement, either as to area or width, or

more frequently, as we see it, the structures

do not conform to the current setbacks, that

is, the structures were built in a certain

way, they were legal then, but they couldn't

be done in the same way now.

We have many situations in Fairfax

County where there are homes constructed on

two, and sometimes more than two, lots. That

scenario raises other problems for the

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neighbors when as now, the price of land has

gone way up, there is very little left to

build on. We're approaching build out in

Fairfax County, and there is an incentive to

redevelop many homes as tear-downs. Many of

those issues that have been presented to us

today, | think, are certainly present in this

neighborhood, but not necessarily before us

for the purposes of the decision. That is,

issues such as the impact on storm water or

conformance with the comprehensive plan, or

aesthetics, are really legislative issues

down the road, and whether the Board of

Supervisors or the General Assembly chooses

to deal with those, I don't think they're

really squarely before us today. The issue

in front of us primarily is whether the

zoning administrator's determination was

correct and that essentially whether these

were at the time of their creation, buildable

lots, or are they still buildable lots today.

Let me address, also, two of the

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procedural issues. | think that based on the

record before us, the appealants would have

standing to appeal the decision. Sometimes,

that is difficult when there's a group of

neighbors, rather than individuals, but I

think on the record before us, we have

neighbors in proximity to the site, also,

whose homes are shown on the same subdivision

plats that the three plats referenced in 1943

and 1946. I would conclude that they would

have an interest in that sufficient -- that

they are aggrieved and that they could appeal

from the Zoning Administrator's decision.

The second procedural issue dealt

with timeliness. That really wasn't squarely

presented to us, but I think that on the

record before us, the appeal that was filed

of the written determination from the Zoning

Administrator was timely. I'm not sure that

the -- it appeared to me that the

determination was the result of a specific

request by Supervisor Hyland to more or less

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recapitulate what the previous answer was.

Although, we've had this similar

situation in other cases, and I think we

concluded that to the extent that a

determination was without notice to an

aggrieved party, that the case in particular

| am remembering is where the zoning

administrator concluded that handguns could

be sold from the condominium unit and the

condominium association had no knowledge that

the guns were going to be sold, that when

association found out and filed the appeal,

the 30-day limitation would have been a due

process problem for them. However you slice

it, | think the appeal was timely.

Then to the merits of the issue. I

would conclude on the record before us that

the staff analysis in the staff report was

correct. | would also conclude Mr. Emrich's

observations, aside from the procedural

issues, but Mr. Emrich's observations were

also correct. Nothing has been shown that |

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can see that there was anything wrong with

the approval of these lots, at least after

the cure provision in the ordnance for the

lots prior to 1947. I don't think there's

any basis to conclude that lots are somehow

abandoned. | first encountered that concept

today, I guess, or when preparing the hearing

today. There are many old lots in Fairfax

County, and just because something is old

doesn't mean there's something wrong with it.

['m not familiar with the concept

of "abandonment," as it deals with a recorded

subdivision or other division in the land

records. | don't think anything persuasive

has been shown to us that there was any

impropriety in the approval or that Joseph

Berry wasn't in fact the county surveyor at

that point in time. There are hundreds, if

not thousands of plats that this board has

seen that Mr. Berry signed in the

corresponding time period, and | don't think

that there's ever been a dispute that I'm

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NO COCO OAH HAWN Hh

aware of that Mr. Berry didn't have the

authority to sign those plats.

I want to address, also, I think

some of the confusion that's been eluded to,

some of the concepts that have been argued to

us, I think, are conflating one issue with

another. I don't see this as a

re-subdivision; in fact, I think the

subdivision was done in the 40s, and that if

I'm understanding the record, nothing has

been recorded since 1946.

The same with respect to the

question of a rezoning. This board doesn't

do rezonings, these property was zoned to the

R-3 District at some point in the past, it

still is R-3, and nothing we're going to do

is going to change that. These properties

would all remain subject to all of the

requirements in the R-3 District if

somebody's going to build a house on them.

Issues such as storm water

problems, someone | think said that we said

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there was no problem. I would certainiy take

issue with that. If there is a problem,

though, it isn't a Board of Zoning Appeals

issue, it's for some other department, and I

would hope that with the assistance of

whether it's staff, or perhaps, Supervisor

Hyland's office, that the appropriate

personnel could be contacted about situations

such as dumping in a stream, or whatever is

resulting from that.

Our role in this process is to call

balls and strikes, and the question is, was

the Zoning Administrator correct that these

lots are still buildable. And I think the

answer is yes. There may be some legislative

changes as a result of this. That's up to

someone else for another day. Maybe there's

something the Board of Supervisors can do. I

don't know, but | think on the narrower

question before us, the Zoning Administrator

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was correct.

Let me address one other legal

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issue. I neglected to say something about,

to my mind, the concept of diligent pursuit

can be applicable in Virginia in a

determination of whether someone has vested

rights or not in an approval. But I've

always read those cases as dealing with a

zoning approval, not a subdivision approval

in the past. I said before that | thought

some of these issues had been conflated, and

I think that in the confusion in the

terminology, perhaps, some of these zoning

issues Or zoning approval issues have been

blended with subdivision issues. None of the

cases about vested rights or diligent pursuit

of an approval, as I understand it in

Virginia, have ever dealt with the concept of

a recorded subdivision later being

challenged. It has always been, to my

knowledge, something where someone gets a

rezoning or other kind of approval for a

special exception or special permit, and then

doesn't take action, whether that action be

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1 engineering, construction, or some other

2 activity or expenditure of money in

3 furtherance of what that approval was. |

4 don't read those cases as having anything to

5 do with a subdivision approval, as opposed to

6 a zoning approval.

7 For those reasons, | think those

8 should be our findings in fact and

9 conclusions of law and that the Zoning

10 Administrator should be upheld.

11 MS. GIBB: Second.

12 MR. DIGIULIAN: Second by Ms. Gibb.

13 Discussion?

14 MR. HAMMACK: Mr. Chairman?

15 MR. DIGIULIAN: Mr. Hammack?

16 MR. HAMMACK: I support the motion

17 generally for the reasons set forth by Mr.

18 Hart. Only two things really concern me, is

19 we really didn't hear too much testimony on

20 the issue of standing or on the 30-day

21 appeal, so, before making findings of fact on

22 that when those were really not argued

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concerned me a little bit.

I certainly have no objection for

Mr. Emrich's remarks and his position, to be

part of the record, so, he can make those

arguments, but we weren't really presented

with this, as we have been in the past on

30-day appeals. Often times, we've had

hearings on just whether the appeal has been

timely filed. That wasn't really raised

10 here, and we've had hearings on standing.

11 And while I'm sort of inclined to think they

12 -- at least it looks it would be standing,

13 still, we didn't really hear the type of

14 testimony and evidence that we have heard --

15 and while I have the floor, two other

16 comments.

17 Some people have mentioned also the

18 tax assessor's records. Well, just to

19 elaborate a little bit on what Mr. Hart said,

20 the tax assessor just doesn't make zoning.

21 We hear those types of arguments from time to

22 time. They do their thing in the way they

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identify property for tax purposes, but

zoning 1s created through the Zoning

Ordnance.

In addition, there are way more 50

by 100 foot lots in Fairfax County than

probably, those of who are still here

realize, and these issues come up regularly,

and it's happening not only in your

neighborhood, but in a lot of other

neighborhoods. One thing that came up today

in the course of testimony are covenants, and

if that might give you all some private

rights that aren't before this board, but we, -

I say regularly, that this board has no

equitable powers or authority. Our powers

are very limited in what we can do, and while

i would agree that your concerns are I'm sure

valid, we don't have the jurisdiction or the

authority to deal with most of these issues.

All we can decide today is whether the Zoning

Administrator's opinion was correct or not.

That's all I have.

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MR. DIGIULIAN: Further discussion?

MR. BEARD: Mr. Chairman?

MR. DIGIULIAN: Mr. Beard?

MR. BEARD: I'm going to have to

reluctantly support, as well, the motion. I

do this with great trepidation. | live in

Mount Vernon. | live in Bell Haven, and I

know what's happening in our community, and

Hollin Hall is basically there's 10 percent

of it, more or less, that's vulnerable to

this. I think the lady hit the nail on the

head when she said you're basically going to

have a de facto R-S5 in an R-3.

But having said that, as I say,

it's with a heavy heart, but I just think

it's what it is. So, I'm going to have to

support the motion.

MR. DIGIULIAN: Further discussion?

All those in favor of the motion by Mr. Hart?

SPEAKERS: Aye.

MR. DIGIULIAN: Opposed? The

motion carries unanimously, and the

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100

| determination of the Zoning Administration is

upheld.

(Whereupon, at 3:10 p.in., the

4 PROCEEDINGS were adjourned)

5 * * * * *

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APPENDIX B

FAIRFAX COUNTY

VIRGINIA

DEPARTMENT OF PLANNING AND ZONING

Zoning Administration Division

12055 Government Center Parkway, Suite 800

Fairfax, Virginia 22035-5508

(703) 324-1374 Fax (703) 803-6372

October 19, 2005

Concerned Citizens of Hollin Hall Village

c/o Catherine M. Voorhees

8029 Washington Road

Alexandria, Virginia 22303

RE: 8059, 8063 Fairfax Road and 8033, 8037 Washington

Road

Hollin Hall Village Subdivision, Section |

Tax Map Ref: 102-2 ((3)) Lots 77, 78,79,80 and 112,113,

114,115

Zoning District: R-3

Dear Ms. Voorhees:

This is in response to your September 1, 2005 and

September 21, 2005 letters regarding the proposed

redevelopment of the above-referenced properties in the

Hollin Hall Village Subdivision. Received with your letters

were attachments that included a legal analysis and certain

map information for the above referenced properties, all of

which I have carefully reviewed.

At issue is the question of whether the existing

houses on the above-referenced lots may be torn down and

replaced by two houses with one on each lot. It is my

determination that such a proposal may be permitted under

the Zoning Ordinance. My position on this question is

guided, in part, by fact that the lots in question met the lot

size requirements in effect when they were created in 1943

and that, under Sect. 2-405 of the Zoning Ordinance, they

could each be developed even though they did not meet the

current lot area and lot width requirements of the R-3

District. Par. 1 of Sect. 2-405 states, in pertinent part, as

follows:

If a lot was recorded prior to March 1, 1941, or if a lot was

recorded prior to the effective date of this Ordinance, and

said lot met the requirements of the Zoning Ordinance in

effect at the time of the recordation, then such lot, either as a

single lot or in combination with other such lots pursuant to a

Building Permit, may be used for any use permitted in the

zoning district in which located under this Ordinance even

though the lot(s) does not meet the minimum district size, lot

area and/or lot width requirements of the district, provided

all other regulations of this Ordinance can be satisfied.

This provision shall not apply to any such lot which,

subsequent to the effective date of this Ordinance, is rezoned

at the request of the owner or his agent.

Notwithstanding the fact that they have been joined under a

Building Permit, the referenced lots have not been the

subject of a re-subdivision. Absent owners complying with

the requirements of the Subdivision Ordinance and recording

new lot lines for their lots, the underlying original lot lines

continue to remain in effect and, in accordance with the

provisions of Sect. 2-405, the lots are buildable lots.

B-2

Concerned Citizens of Hollin Hall Village

October 19, 2005

Page 2

In the Legal Analysis attached to your September 1,

2005, letter, 1 understand that you have concluded that the

proposed redevelopment of the above-referenced properties

in Section | of Hollin Hall Village should require a rezoning

application. Your opinion is based on the belief that lots on

which a single residence is built under a Building Permit at

some point in time after their initial recordation should be

considered consolidated. Further, your argument implies that

Sect. 2-405 is not applicable to these lots as you believe a

permitted reduction in lot size should not apply to two or

more lots that have a single residence under a Building

Permit, even though each of the lots as recorded met the

minimum regulations in effect at the time of recordation.

This argument suggests that Sect. 2-405 does not apply

because the lots in question have, in effect, been

subsequently subdivided and that rezoning to a higher

density residential district would be necessary to permit

development on lots that would otherwise not meet the lot

size requirements of the current R-3 District.

Attached to your September 21, 2005 follow-up

letter, you have provided a supplemental analysis, in which,

as I understand it, you have made the following assertions:

1) The Hollin Hall Village Subdivision plats showing

Sections | and 2 were not approved by an appropriate

County official and, consequently, should not be considered

valid.

2) In a memorandum from the County Attorney's Office

to Supervisor Hyland's Office, dated August 9, 2005, it was

B-3

indicated that the minimum required lot size for lots created

in Hollin Hall Village under the Urban Residence District

regulations was 5,000 square feet. Your letter states that this

is inaccurate, as it disregards the more complete provision

which states that required minimum lot size is 5,000 square

feet, provided a larger arca is not required by the Fairfax

County Health Unit. Because sanitary and water hook-ups

were not indicated on the approved 1943 Hollin Hall Village

subdivision plats, and no Health Department review or

approval was indicated, you believe that the lots did not

comply with the minimum lot size requirements in effect at

the time the lots were created. Additionally, you have

referenced the County’s Subdivision Control Ordinance in

effect between 1947 and 1954 with respect to a provision

that requires certain additional improvements in subdivisions

that included new public streets and contained building sites

less than 10,000 square feet. * I understand your contention

is that, since associated road-related improvements were not

provided, the minimum lot size under the applicable

Subdivision Ordinance was 10,000 square feet.

3) The 1943 Hollin Hall Village recorded lots did not

meet the minimum lot area required under the Zoning

Ordinance in effect at the time that they were developed (late

| 940’s/early 1950’s) because the minimum lot size

requirement for the Urban Residence District had been

amended and increased from 5,000 square feet to an average

of not less than 10,000 square feet and a minimum individual

lot area of not less than 8,400 square feet.

With respect to the matter of whether the 1943 Hollin

Hall Village Subdivision plats depicting Sections | and 2

were officially approved in accordance with applicable

County regulations, | believe that these plats were officially

approved by appropriate County officials and properly

recorded among the County's land records in Deed Book 403

B-4

at Pages 491A and 493A on March 31, 1943. However, the

question of whether these plats were approved by an

appropriate County official is ultimately superseded by the

fact that the County’s Subdivision Ordinance, under Section

101-1-12, provides for the validation of certain divisions of

land recorded by metes and bounds or an unapproved plat

before September 1, 1947. Therefore, even

Concerned Citizens of Hollin Hall Village

October 19, 2005

Page 3

if the Hollin Hall Village Subdivision plats recorded in 1943

were not officially approved by an appropriate County

official, it would not matter in this case because the lots

would be legal and valid under Section 101-1-12 of the

Subdivision Ordinance. Subparagraph (a) of Section 101-1-

12 reads as follows:

(a) All divisions of land undertaken by the recordation

among the land records of Fairfax County prior to September

1, 1947, of a metes and bounds description or a plat not

approved by the appropriate County board, agency

or official that complied with all applicable provisions of the

Zoning Ordinance in effect at the time the description or plat

was recorded or at some time thereafter, or meet the

provisions of Sect 2-405 of the Zoning Ordinance, except as

noted in paragraph (b), are hereby validated and shall for all

purposes be deemeu to be in compliance with all provisions

of the Subdivision Ordinance in effect at the time they were

recorded as if they had fully complied with all provisions of

said Subdivision Ordinance.

B-5

This provision makes clear that the referenced lots in Section

1 and 2 of Hollin Hall Village are valid lots under the

Subdivision Ordinance, irrespective of official County

approval, as the plats depicting these properties were

recorded in the County’s land records pnor to September |,

1947. The applicability of Sect. 101-1-12 in this instance

has been discussed with and verified by the Department of

Public Works and Environmental Services (DPWES), which

is the agency that is responsible for the implementation of

the Subdivision Ordinance.

As indicated above, the consolidation of lots under a

Building Permit does not constitute an official subdivision of

land and, therefore, the original lots can be developed in

accordance with Par. 1 of Sect. 2-405 pursuant to new

Building Permits and all other applicable Zoning Ordinance

regulations. If the lots in question had been consolidated in

accordance with the County’s Subdivision Ordinance

regulations (re-subdivided) I would agree with your opinion.

However, this is not the case and the underlying recorded

subdivision lots remain as buildable lots.’

With respect to your assertions that the referenced

properties did not meet the required minimum lot area

(paragraphs 2 and 3 above) | offer the following comments.

At the time they were created in 1943, the referenced

properties were subject to the Urban Residence District,

which required a minimum lot area per structure of 5,000

square feet, provided a larger area was not required by the

Fairfax County Health Unit The recorded plats indicate that

each of the referenced lots contained an area greater than

5,000 square feet and nowhere on the approved plats or in

the recordation was there any indication of restrictions

imposed by the County’s Health Unit I would, therefore,

conclude that the referenced lots met the minimum lot size

requirements of the Urban Residence District at the time of

B-6

their creation. Your second question on minimum required

lot area indicates that the referenced lots are not buildable in

their original form because they did not meet the mintmum

required lot size requirements of the Urban Residence

District in effect at the time the referenced lots were

eventually developed. You have correctly noted that the

Urban Residence District regulations were amended, on

April 4, 1951, to increase the required minimum lot area to a

minimum average of not less than 10,000 square feet and

minimum area of 8,400 square feet. However, as I have

previously stated, Sect. 2-405

1 Certain lots in Sections | and 2 of Hollin Hall were

resubdivided into larger lots by a plat recorded among the

land records on June 19, 1946, in Deed Book 494 at Page

178. These lots were renumbered with lot numbers from 500

to 529 and do not include any of the referenced lots.

Concerned Citizens of Hollin Hall Village

October 19, 2005

Page 4

clearly indicates that if a lot is recorded prior to the effective

date of the June 12, 1978 Zoning Ordinance, and said lot met

the zoning requirements in cffect al the time of recordation,

it may be used for any permitted use within the zoning

district in which it is located even though it does not meet

the current lot size requirements, provided all other

regulations can be met including the minimum yard

requirements. Since the referenced lots met the zoning

requirements at the time of their recordation, they are

buildable even though they may not have met the minimum

required lot area in effect at the time they were developed or

B-7

the current minimum lot area requirement. Incidentally, it

should be noted that according to our records, at least one of

the referenced properties was originally developed prior to

the date on which the Urban Residence District

minimum lot area requirement was amended. A Building

Permit for the house located on Lots 112 and 113 was issued

on August 4, 1949. —In summary, County approved plats of

Sections | and 2 of the Hollin Hall Village Subdivision were

recorded among the County’s land records on March 31,

1943. Such plats included the above referenced lots that are

deemed buildable in accordance with the provisions of Sect.

2-405 of the Zoning Ordinance, as they met the

requirements, including minimum required

lot area, that were in effect at the time of their creation. The

referenced lots, although subsequently used for a single

residence on two lots under Building Permits, have never

been consolidated into larger, single lots under the County’s

Subdivision Ordinance, and thus the originally recorded

underlying lot lines remain in effect. The referenced lots are

considered to be valid lots under the Subdivision Ordinance

and, if a structure that is located on two lots is removed,

Building Permits may be issued for the ~development of a

single family detached dwelling on each of the originally

platted lots if all County and applicable Zoning Ordinance

regulations, including minimum yard requirements of the R-

3 District, are met.

This letter has been coordinated with DPWES and |

trust that it adequately responds to your request. If you

should have any further comments or questions, please do

not hesitate to contact me, or Jack Reale of my staff at 703-

324-1314.

Sincerely.

B-8

William E. Shoup

Zoning Administrator

cc: Gerry Hyland, Supervisor

Mt. Vernon District

James P. Zook, Director, Department of Planning and

Zoning

Tom Nelson, Office of Site Development Services, DPWES

Hayden Codding, Assistant County Attorney

Jack Reale, Senior Assistant to the Zoning Administrator

B-9

APPENDIX C

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

CONCERNED CITIZENS OF

HOLLIN HALL VILLAGE, et aL,

Petitioners,

v. CASE NO. CL-

2006-0002456

COUNTY OF FAIRFAX BOARD

OF ZONING APPEALS, et a!.,

*Respondents.

FINAL ORDER

THIS CAUSE CAME before the Court for trial on

October 10, 2006, upon the pleadings filed by the parties

hereto and the Writ of Certiorari allowed by the Court

pursuant to Va. Code Ann. § 15.2-23 14 (Supp. 2006), to

review the decision of the Board of Zoning Appeals of

Fairfax County, Virginia (“BZA”), in Appeal Application

No. A 2005~MV-055,which upheld the October 19, 2005,

determination of the Fairfax County Zoning Administrator

that a single-family dwelling may be built on each lot in the

Hollin Hall Village subdivision under Fairfax County Zoning

Ordinance § 2-405(1); and

UPON CONSIDERATION of the pleadings, the evidence

presented, the authorities, and the arguments of counsel, and

for the reasons stated by the Court at the hearing on October

13, 2006; now, therefore, it is hereby

ADJUDGED AND ORDERED that the BZA’s

decision in Appeal Application No. A 2005-MV-055 is

affirmed, and the Petitioners’ prayer for relief in the Petition

for Writ of Certiorari is denied.

AND THIS CAUSE IS ENDED.

ENTERED this 13 day of October 2006.

//sit

Kathleen H. Mackay, Judge

Fairfax County Circuit Court

WE ASK FOR THIS:

DAVID P. BOBZIEN

COUNTY ATTORNEY

By: //s//

R. Scott Wynn (VSB No. 22380)

Senior Assistant County Attorney

F.Hayden Codding (VSB No. 39785)

Assistant County Attorney

12000 Government Center Parkway, Suite 549

Fairfax, Virginia 22035-0064

(703) 324 2421

(703) 324-2665 (fax)

Counsel for Respondent Eileen M. McLane, Fairfax

County Zoning Administrator

Jerry K. Emrich, Esquire (VSB No. 4723)

C-2

Walsh, Colucci, Lubeley, Emrich & Terpak, P.C.

2200 Clarendon Blvd., 13" Floor

Arlington, Virginia 2220]

(703) 528-4700

(703) 528-6050 (fax)

Counsel for Respondents PFK, LLC, PJB, LLC, and Hall

Hollin, LLC

No appearance

John P. Di Giulian, Chairman

Fairfax County Board of Zoning Appeals

12055 Government Center Parkway, Suite 801

Fairfax, Virginia 22035

SEEN:

//s//

David H. Voorhees, Esquire (VSB No. 29139)

8029 Washington Road

Alexandria, Virginia 22308

Counsel for Petitioners

With attached objections.

Objections by the Concerned Citizens of Ilollin Hall Village

et al.

1. No evidence was entered into the record that the 1941

Zoning Ordinance requirements were met by the 1943/1946

plats.

2. Article 20 definitions of the current Zoning Ordinance for

“lot” and “use” as specifically enacted by the Board of

Supervisors were not applied for interpreting and

administering Section 2-405 of the zoning ordinance.

3. §§$15.2-2246 and 15.2-2286 Code of Virginia required

Zoning Ordinance to be met prior to recordation in 1950.

Thus, decision incorrectly applied the law retroactively.

Likewise, vacation of lot lines was not made law until 1950.

Finally, Section 2-405 is prospective allowing continuing of

1941 Zoning Ordinance requirements in developed land, not

recorded plats.

4. 1943/1946 plats were abandoned, as per the 1941 Zoning

Ordinance and Love v. National Bank (Supreme Ct. 1965)

and Robertson v. City of Alexandria (Va. Cir. 1998). Love

and Robertson both held recorded property no longer exists

if 1) never used in the manner recorded. Love further held

taxes were not paid for the separate property interest so no

property rights were exercised.

5. Not all provisions of the 1978 Zoning Ordinance can be

satisfied as required by 2-405 under the Zoning

Administrators application of 2-405. In particular, 2-501, 3-

301, Article 17 and the Conflict of Laws Section.

6. Under the current Subdivision Ordinance, the Zoning

Administrator's decision ts not a by-right subdivision. It is a

resubdivision of a parcel creating a new lot which requires

public notice and public hearing.

7. Thus, the BZA decision fails to meet the current Zoning

Ordinance and the current Subdivision Ordinance.

C-4

APPENDIX D

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Tuesday the 8th

day of May, 2007.

Concerned Citizens of Hollin

Hall Village, et al., Appeilants,

Against Record No. 070058

Circuit Court No. CL—2006-0002456

Board of Zoning Appeals

of Fairfax County, et al.,

Appellees.

From the Circuit Court of Fairfax County

Upon review of the record in this case and

consideration of the argument submitted in support of and in

opposition to the granting of an appeal, the Court is of

opinion there is no reversible error in the judgment

complained of. Accordingly, the Court refuses the petition

for appeal.

A Copy,

Teste:

Patricia L. Harrington, Clerk

. Jind}

ji j

By: i S//

Deputy Clerk

APPENDIX E

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 22nd

day of June, 2007.

Concerned Citizens of Hollin

Hall Village, et al., Appellants,

Against Record No. 070058

Circuit Court No. CL-2006-0002456

Board of Zoning Appeals

of Fairfax County, et al., Appellees.

Upon a Petition for Rehearing

On consideration of the petition of the appellants to

set aside the judgment rendered herein on the 8th day of

May, 2007 and grant a rehearing thereof, the prayer of the

said petition is denied.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By: original order signed by a

deputy clerk of the Supreme

Court of Virginia at the

direction of the Court

Deputy Clerk

APPENDIX F

VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

OF ZONING APPEALS, et al,

CONCERNED CITIZENS OF )

HOLLIN HALL VILLAGE, etal, _)

)

Petitioners, . )

V. ) Civil Action

) No.: 2006-2456

)

COUNTY OF FAIRFAX BOARD _)

)

Respondents.

ORDER ON COUNSEL’S MOTION FOR LEAVE TO

WITHDRAW APPEARANCE ON BEHALF OF

PETITIONERS

THIS MATTER came before the court on the Motion

of Brad D. Steele, Esq., James C. Brincefield, Jr., Esq. and

Brinccficld Hartnett, P.C., to withdraw as counsel for the

Concerned Citizens of Hollin Hall Village, and after

reviewing the same

IT APPEARS TO THE COURT that good cause

exists for the granting of the Motion, now, therefore, it is

hereby ADJUDGED, ORDERED, and DECREED as

follows:

The Motion is GRANTED and Brad D. Steele, Esq.,

James C. Brincefield, Jr., Esq. and Brincefield Hartnett, P.C.

are hereby removed as attorneys of record for the Concerned

Citizens of Hollin Hall Village, and any and all members of

said organization, and their appearances are hereby

withdrawn.

Until and unless new counsel appears on behalf of the

organization, it shall be a pro se party, and any papers

required or permitted to be served shall be served on it at the

following addresses:

Concerned Citizens of Hollin Hall Village

c/o Gretchen Walzl

7917 New Market Road

Alexandria, Virginia 22308

ENTERED this 14 day of July 2006.

HH s/f

Judge, Fairfax Circuit Court

WE ASK FOR THIS:

BRINCEFJELD HARTNETT, P.C.

By: [s/t

James C. Brincefield, Jr., VSB #06400

526 King Street, Suite 423

Alexandria, Virginia 22314-3144

(T) (703) 836-2880

(T) (703) 549-1924

Counsel for Petitioners

SEEN AND AGREED on condition trial date does not

change

Walsh, Colucci, Lubeley, Emrich & Terpak, P.C.

By: //s//

Jerry Emrich, VSB No. 04732

2200 Clarendon Blvd., 13th Floor

Arlington, Virginia 22201

(T) (703) 528-4700

Counsel for Respondents PFK, LLC, Hail Hollin, LLC and

PJB,LLC

Seen and Agreed:

F Hayden Codding //s//

Counsel for the Zoning Administrator

SEEN AND AGREED

Fairfax County Attorney

By:

F. Hayden Codding, VSB No. 39785

12000 Government Center Parkway, Ste. 549

Fairfax, Virginia 22035

(T) (703) 324-2421

(F) (703) 324-2665

Counsel for Respondent Fairfax County Zoning

Administrator and BZA

A COPY TESTE:

JOHN T FREY, CLERK

By:___//s//

Date 7-14-06

Fairfax County, Virginia

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APPENDIX G

VIRGINIA:

IN THE CIRCUIT COURT FOR FAIRFAX COUNTY

CONCERNED CITIZENS OF

HOLLIN HALL VILLAGE, et aL,

Petitioners,

)

) CIVIL ACTION NO.

) 2006-2456

)

COUNTY OF FAIRFAX BOARD )

OF ZONING APPEALS, et al., )

)

Defendants.

ORDER ON WITHDRAWAL OF APPEARANCE BY

VENABLE LLP

It appearing to the Court that Catherine M. Voorhees

as counsel and Venable LLIP initially entered their

appearance on behalf of the petitioners, and it further

appearing that James C. Brinceficld, Jr. and the law firm of

Brincefield Hartnett, PC previously entered their appearance

as counsel for petitioners to substitute for Venable LLP, and

subsequently withdrew from the case, and it appearing that

the Court has recognized that the petitioners are proceeding

pro se in this matter, it is hereby

ORDERED that the appearance of Catherine M.

Voorhees as counsel and Venable LLP as counsel for

petitioners is withdrawn and that Catherine M.

Voorhees will continue in the case as a pro se petitioner; and

further

ORDERED that a copy of this Order be delivered to

all petitioners.

Entered this 6 day of Oct , 2006

//s//

° JUDGE

We ask for this:

VENABLE LLP

//s//

Michael W. Robinson

VSB No. 26522

8010 Towers Crescent Drive, Suite 300

Vienna, VA 22182

(703) 760-1988

(703) 821-8949 (facsimile)

mwrobinson@venable . corn

Seen and Agreed:

WALSH, COLUCCI, LUBELEY. EMRICH & TERPAK,

PC.

Jerry Emrich

VSB No. 04732

2200 Clarendon Blvd., 13th Floor

Arlington, VA 2220]

G-2

(703) 528-4700

Seen and Agreed:

F. Hayden Codding

VSB No. 39785

Fairfax County Attorney’s Office

12000 Government Center Parkway, Suite 549

Fairfax, VA 22035

(703) 324-2421

(703) 324-2665 (facsimile)

Seen:

Gretchen Waizl, Petitioner

Seen:

David H. Voorhees, Petitioner

Seen: ,

Catherine M. Voorhees, Petitioner

Seen:

Mark Welch, Petitionci

Seen:

Nancy Welch, Petitioner

G-.

Seen:

Joan T. Coe, Petitioner

Seen:

Eugene A. Groshong, Petitioner

Seen:

Robin Smith, Petitioner

Seen:

Melvin Smith, Petitioner

Seen:

James Stein, Petitioner

Seen:

Karen Stein, Petitioner

G-4

APPENDIX H

COMMONWEALTH OF VIRGINIA

COUNTY OF FAIRFAX

APPLICATION FOR APPEAL

RECEIVED

Dept of Planning & Zoning

NOV 1 0 2005

Zoning Administration Div

APPLICATION NO. A2005-MV-055

(Assigned by Staff)

NAME OF APPELLANT: Concerned Citizens of Hollin

Hall Villlage

NATURE OF THE APPEAL:

Appeal of the Zoning Administrator’s determination that an

existing, conforming use can be redeveloped into a new non-

conforming use. That is, an existing dwelling unit on two

recorded lots cannot be redeveloped by tearing down the

existing house and building two new dwelling units on the

existing lot.

DATE OF ORDER, REQUIREMENT, DECISION,

DETERMINATION OR NOTICE OF VIOLATION

WHICH IS SUBJECT TO THE APPEAL Octéber 19. 2005

HOW IS THE APPELLANT AN AGGRIEVED PERSON

The Concerned Citizens of Hollin Hall Village are property

owners in the Hollin Hall Village Subdivision, most of the

members own property in the Section of Hollin Hall and are

adjacent property owners of so-called double lots. See

attachment

IF APPEAL RELATES TO A SPECIFIC PROPERTY,

PROVIDE THE FOLLOWING INFORMATION

POSTAL ADDRESS OF PROPERTY: 8059 & 8063

Fairfax Road and 8033 & 8037 Washington Road

TAX MAP DESCRIPTION: 1022030077,1022030079, and

102203117 & 1022030114

The undersigned has or has not (circle one) the authority to

allow and does or does not (circle one) authorize Fairfax

County staff representatives on official business to enter on

the subject property as necessary to process the application.

Type or Print Name of Appellant or Agent

Catherine M. Voorhees on behalf of Concermed Citizens of

Hollin Hall Village

Signature of Appellant or Agent

//s//

Address

8029 Washington Road, Alexandria, VA 22308

Telephone No. Home / Work

Please provide name and phone number of contact person if

different from above.

DO NOT WRITE IN THIS SPACE

Subdivision Name: Hollin Hall Village

Total Area (Acres/Square Feet): 1.243

Present Zoning: R-3

Supervisor District: Mount Vernon

Date application received: | 1/10/05 Application Fee Paid:

$375.00

Date application accepted: — 11/22/05

H-2

APPENDIX I

APPENDIX J

FAIRFAX COUNTY COMPREHENSIVE PLAN,

2007 Edition POLICY PLAN

Land Use, Amended through 3-12-2007 Page |

LAND USE

INTRODUCTION

In less than a generation, Fairfax County has been

transformed from a residential suburb of the Nation’s

Capital, into a complex commercial, residential, office, and

research community. This extraordinary transformation is

reflected in the County’s land use pattern. Fairfax County

has become the region’s pre-eminent location for new office,

research, and shopping center development. Between 1970

and 1995, the number of acres in non-residential land uses,

excluding public facilities, quadrupled, expanding by 463

percent. At the same time, the number of acres in residential

land use in the County grew by 168 percent. While single-

family detached housing continued to be the predominate

residential land use, the combined development of

townhouses and apartments out paced single-family detached

housing since 1970 at a rate of 6 to 4 and since 1990, out

paced single family dwelling units at a rate of 2 to 1.

One of the effects of growth in Fairfax County is the

impact on the public facilities and infrastructure systems. A

principal concern, raised in the public participation process,

is the effect of growth on mobility, especially the impact on

the road system in peak periods. Developing and

implementing effective measures to address mobility is a

principal challenge for Fairfax and for other rapidly

urbanizing areas. While there may be no practical solution to

returning the County to pre-boom levels of service,

managing the interacting elements of congestion is required

J-|

if the County is to influence forces, which if left unattended,

will degrade current service levels. The County needs to

manage the expansions of transportation capacity, manage

the reduction of transportation demand; and the County

needs to manage the pace, the intensity and the pattern of

growth.

Another effect of Fairfax County growth has been a

diminishing supply of vacant land. If current trends continue,

the supply of land presently planned for residential

development will be all but exhausted shortly after the turn

of the century. This impending land shortage has

implications not only for the residential development pattern

that may emerge, but also for existing residential

development. As land values increase due to decreasing

supply, the pressure to redevelop existing lower density

neighborhoods, as well as non-residential acreage, will

increase. While in selected instances this may be desirable,

the practice of redevelopment must be carefully controlled so

as to not undermine stable neighborhoods and the provision

of public services and facilities. The loss of neighborhoods

can quickly lead to a loss of a sense of community: a basic

facet of a high quality of life. The County’s ability to secure

sites for parks, schools and public facilities and to provide

affordable housing opportunities also is greatly affected by

the short supply of land.

This element of the Plan recognizes the changes that

have taken place in the County and the challenges that lie

ahead. The objectives and policies presented in this section

provide guidance for an appropriate pattern and pace of

development and they indicate how this development should

relate to the existing and future community. They also

provide a logical framework for land-use decision-making at

a conceptual level as well as on an area-wide and site

specific basis. Uniform application of these objectives and

policies should result in a balanced and harmonious

J-2

community where a high quality of life can be maintained.

Since all policy areas, whether housing, employment

or the environment achieve physical realization through the

land use plan, the development and implementation of sound

and consistent land use principles is critical to the realization

of County goals.

Page 2

The countywide objectives and policies for land use have

been organized under four broad headings:

° Land Use Pattern

° Land Use Intensity

° Pace of Development

° Land Use Compatibility

BOARD OF SUPERVISORS GOALS

Fairfax County has adopted a specific goal for land

use as well as related goals which provide additional land

use direction and guidance in the areas of transportation,

revitalization, private sector facilities and employment.

These goals read as follows:

Land Use - The County’s land use policies should maintain

an attractive and pleasant quality of life for its residents;

provide for orderly and coordinated development for both

public and private uses while sustaining the economic and

social well-being of the County; provide for an adequate

level of public services and facilities, including a system of

transportation facilities, to sustain a bh > quality of life; and

ensure sound environmental practices in the development

and redevelopment of land resources. Growth should take

place in accordance with criteria and standards designed to

preserve, enhance, and protect an orderly and aesthetic mix

J-3

of residential, commercial/industrial facilities, and open

space without compromising existing residential

development. The Comprehensive Land Use Plan should

set forth long-range recommendations and implementation

techniques to ensure the envisioned coordination of

harmonious development, while still achieving our economic

goals. Densities and heights in excess of those compatible

with these goals should be discouraged, nor should these

policies be construed as incompatible with the County’s

affordable housing goal.

Transportation - Land use must be balanced with the

supporting transportation infrastructure, including the

regional network, and credibility must be established within

the public and private sectors that the transportation program

will be implemented. Fairfax County will encourage the

development of accessible transportation systems designed,

through advanced planning and technology, to move people

and goods efficiently while minimizing environmental

impact and community disruption. Regional and local efforts

to achieve a balanced transportation system through the

development of rapid rail, commuter rail, expanded bus

service and the reduction of excessive reliance upon the

automobile should be the keystone policy for future planning

and facilities. Sidewalks and trails should be developed as

alternate transportation facilities connecting mass transit,

high density areas, public facilities and employment areas.

Open Space - Fairfax County should support the

conservation of appropriate land areas in a natural state to

preserve, protect and enhance stream valleys, meadows,

woodlands, wetlands, farmland, and plant and animal life.

Small areas of open space should also be preserved in

already congested and developed areas for passive

j-4

neighborhood uses, visual relief, scenic value, and screening

and buffering purposes.

Revitalization - Fairfax County should encourage and

facilitate the revitalization of older commercial and

residential areas of the County where present conditions

warrant. Revitalization initiatives should encourage business

development, promote public and private investment and

reinvestment, and seek to prevent or eliminate the negative

effects of deteriorating commercial and industrial areas.

Revitalization efforts should work in concert with other

community programs and infrastructure improvements and

strive to foster a sense ...

Page 10

Policy b. Encourage infill development in established

areas that is compatible with existing and/or planned land

use and that is at a compatible scale with the surrounding

area and that can be supported by adequate public facilities

and transportation systems.

Policy c. Achieve compatible transitions between

adjoining land uses through the control

of height and the use of appropriate buffering and screening.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.