What is an Abutting Property for Purposes of Zoning and Land Use
My question involves real estate located in the State of: Virginia, Fairfax County.
Paragraph 2-414 of Fairfax County Zoning Ordinance says:
2-414 Yard Regulations for Lots Abutting Certain Principal Arterial Highways and Railroad
Tracks
1. Notwithstanding any other provision of this Ordinance, the following minimum distances
shall be maintained between all principal buildings and right(s)-of-way of interstate
highways, the Dulles International Airport Access Highway and the combined Dulles
International Airport Access Highway and Dulles Toll Road:
A. All residential buildings - 200 feet.
B. All commercial and industrial buildings - 75 feet.
.....
http://i.imgur.com/qHZ861Y.jpg?1
what is legal definition of "Abutting" used in the title of this paragraph?
Does Lot 5 (2408 Spring St.) abut the 495 Right-of-Way? I know for sure that Lots 6, 7, 8 do.
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
The word abutting here is specious. The actual code says you can't put a residential building closer than 200' from the beltway ROW. It doesn't care if you technically abut it (which I don't think you do as your property abuts Spring Street, Lot 4, 6, 19A, 20B, and 21A.
Your picture didn't work but I lived in Fairfax County for 25 years and know how to work the map system.
I've generally found the zoning staff to be pretty friendly for things like that. Did you ask them?
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
The Zoning Administration do believe that Lot 5 does abut the 495; therefore, the setback is 200 feet. I disagree for the following two reasons:
A - Legal definition of abut:
According to the West's Encyclopedia of American Law, "abut (as a verb) means when two parcels of real property touch each other. When referring to real property, abutting means that there is no intervening land between the abutting parcels. Generally, properties that share a common boundary are abutting."
Examining Lot 5 closely and applying the above legal definition, you would see that:
1- Lot 5 does NOT "touch" the 495 right-of-way except at only one point. This tiny point may not even exist if you closely examine the in-field survey,
2- There is an "intervening land" between Lot 5 and the 495 right-of-way, contrary to the legal definition of the word abutting, and
3- Lot 5 and 495 does NOT share a "common boundary."
Therefore, I strongly believe that Lot 5 does NOT abut 495 right-of-way according to legal definition of "abutting" stated above and that the Zoning Administration should have NOT applied Par. 2-414 to Lot 5 at the first place.
B- The Zoning Administration did not apply that Paragraph to Lot 3 and Lot 4 (2404 and 2406 Spring st. respectively).
what do you think? Do I have a valid point/logic here?
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
What I think I stated. Whether it abuts or not is immaterial. The ordinance says you can't put a residential structure closer than 200' from the right of way. While they mention abutment in the section title, that is NOT a determining factor.
I can see your image now. The green lines do indeed seem to be the allowable building location (provided that 12 and 25 are your side and rear lot line setbacks, I don't know what your property is zoned).
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
I would first want to know when this subdivision was approved and when the zoning ordinance (in it's present form) was approved.
One of problems I see is that there are no definitions in the zoning ordinance. So whether the legal definition of abut may say that the properties share a common boarder, the fact that the corner of the property touches the ROW may make it subject to the ordinance.
Quote:
According to the West's Encyclopedia of American Law, "abut (as a verb) means when two parcels of real property touch each other.
Quote:
2-414 Yard Regulations for Lots Abutting Certain Principal Arterial Highways and Railroad Tracks
1. Notwithstanding any other provision of this Ordinance, the following minimum distances shall be maintained between all principal buildings and right(s)-of-way of interstate highways, the Dulles International Airport Access Highway and the combined Dulles International Airport Access Highway and Dulles Toll Road:
A. All residential buildings - 200 feet.
B. All commercial and industrial buildings - 75 feet.
2. Notwithstanding any other provision of this Ordinance, there shall be a minimum distance of 200 feet between all residential dwellings and railroad tracks, except for tracks associated with electrically-powered regional rail transit facilities and tracks associated with accessory electrically-powered regional rail transit facilities.
3. Deviations from the provisions of Par. 1 and 2 above may be permitted with Board of Supervisors' approval of appropriate proffered conditions, if it finds that such deviations will further the intent of the Ordinance, adopted comprehensive plan and other adopted policies.
4. The provisions of Par. 1 and 2 above shall not apply in those instances where a lot has been recorded prior to the effective date of this Ordinance where the enforcement of this regulation would negate the use of the lot in accordance with the provisions of the zoning district in which located.
2-415 Yard Regulations for Lots Having
This ordinance seems to make lots 6,7,and 8 (and whatever is below them) unbuildable if this is a residential zone.
If the zoning administration has determined that the set back has to be 200 ft, you can appeal to the Board of Supervisors as in section 3 above. Also, you see in section 4 that if the lot was created before the present form of the ordinance, then the ordinance does not apply it.
So I suggest that you speak with an attorney about what you may do to challenge their determination or appeal it.
If by chance you bought this property after the ordinance was passed, you didn't do your due diligence to find out what and where you could build. And that may just be something you have to live with.
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
The Subdivision recorded in 1940, which predates the effective date of the current Zoning Ordinance. However, this is not enough, the Zoning Administration says. they say, the imposition of Par. 2-414-1A does not negate the use of the lot; therefore, the 200ft setback is applicable.
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
Then all you can do is apply for a variance. There must be some attorneys that have good experience before the county board and can advise you as to a probable outcome. Then it is up to you to decide if the gamble is worth it.
In looking at you image, the houses that are on the lots obviously do not comply with the zoning. The character of the neighborhood will not change if you are allowed to move you home closer to the ROW.
It seems a bit arbitrary that you would be prohibited from building in the same setbacks as the lots around you.
You really need to speak with an attorney.
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
Consistent with what flyingron indicated,
Quote:
Quoting Marshall v. Northern Virginia Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008)
...Article IV, Section 12 requires that subjects encompassed in a statute, but not specified in the statute's title, be congruous, and have a natural connection with, or be germane to, the subject stated in the title. Commonwealth v. Brown, 91 Va. 762, 772, 21 S.E. 357, 360 (1895) (construing former Va. Const. art. V, § 15 (1869)). This mandate, however, does not require that an act's title include an index to each provision of the act. Southern Ry. Co. v. Russell, 133 Va. 292, 298, 112 S.E. 700, 702 (1922) (construing former Va. Const. art. IV, § 52 (1902)).
From the image you posted, there's already a residential structure on that property, as well as upon its neighboring properties. So what's the actual issue?
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
Presumably he wants to CHANGE the property to build outside the green bounded area. This happens all the time in the county. Either that or their alleging a violation of something that's already been built. If he can show it was legal under the ordinance it was constructed, that covers the later. Otherwise he'll need a variance (or more likely a SPECIAL PERMIT).
By the way you can watch the BZA (nearly) every Wednesday morning on Channel 16 (both on cable and fios). Kind of handy for understanding how they operate.
I can tell you how the SP/Variance process works. I went through this. I used to own a lot in the center of the County that was seven sided. In an earlier discussion, we had to ascertain which of the facets of the lot boundary were the "rear" and which were "side" lot lines.
Anyhow for the variance you have to write an affidavit showing you're the owner, what you want to do, and why such a variance is justified under the code. I think they wanted pictures as well. You must also submit a VARIANCE PLAT which needs to have about ten SPECIFIC things on it. You can't just submit your house location plat. Make sure you surveyor you hire understands this is for a variance and they have done such work before (if they can identify items a...h or whatever they probably know). I made the mistake of hiring the wrong one and it took many iterations to get it right.
Then you take all this stuff to the county and they'll give you a hearing date. They'll come out and post the property. You are responsible for sending notices via certified/RRR mail to the ten neighboring properties they identify. Then comes the public hearing. If it's all in line and pretty much uncontested, you can get it approved then. They'll waive the reconsideration period in most cases.
Again, I've found county staff to be more than helpful and they will indeed sit down with your submision prior to filing and tell you what else you need.
Re: Meaning of Abutting when Use in Reference with Zoning and Land Use
Quote:
Quoting
Mr. Knowitall
From the image you posted, there's already a residential structure on that property, as well as upon its neighboring properties. So what's the actual issue?
I don't see a structure on the lot as I do on the other lots. But I've looked and can't find anything on non-conforming structures or the grandfather clause in their zoning code.