The appeal, which was filed with the Board of Zoning Appeals this week, says that O'Connell misled the county and the neighborhood about the scope of the renovation and expansion project and that the neighbors weren't properly notified. The appeal says that the County decision was "based on incomplete and inaccurate information" provided by O'Connell.
The appeal says that the increased hours of usage of the new fields, together with new users such as Marymount University and others, should have triggered the need for a special use permit.
"It defies reason to exempt O'Connell from such requirements for one of the largest construction projects to be conducted in our residential neighborhood in its history," the neighbors say in the appeal.
The neighbors’ new filing challenges a Feb. 2 decision by County Zoning Administrator Melinda Artman, who rejected the claim because it was not made within 30 days of the zoning decision last summer. In the appeal, the neighbors say they were not notified of that decision and that they did not receive proper notice until Jan. 10, when the earlier determination of the Zoning Administrator was posted on the County’s website.
The appeal says that O’Connell has repeatedly misled the county and the neighborhood about the scope of the project. “In its one-paragraph June submittal, the school said only that it was seeking ‘the installation of synthetic turf on their existing field surfaces.” This submittal constituted the entirety of the information available to the Zoning Administrator when he made his determination,” the appeal says.
The school has since said that it was seeking major improvements to its fields including redevelopment and expansion of the soccer field, the relocation of the baseball field, the elimination of 60 parking spaces, the demolition of the existing track and its expansion, and the construction of major ancillary structures such as new bleachers, press box, storage, concession building and restrooms.
But “none of this information was available to the Deputy Zoning Administrator when he made his decision,” the appeal says.
You can read the appeal on the next page.
February 14, 2011
By Hand
Board of Zoning Appeals
2100 Clarendon Boulevard
Suite 1000
Arlington, Virginia 22201
Re: Bishop O’Connell High School Athletic Fields (U-1159-55-1 and U-2110- 72-2) -- Appeal of Zoning Administrator’s Decision
The undersigned individuals, members of the Williamsburg and Arlington/East Falls Church Civic Associations who reside in homes adjacent to or near Bishop Denis J. O’Connell High School (“O’Connell” or the “School”), seek review of a decision by the Zoning Administrator rejecting their appeal of an earlier determination of the Deputy Zoning Administrator regarding the above-referenced permits. (A copy of this decision is attached as Attachment 1). In her letter of February 2, 2011, the Zoning Administrator, Melinda Artman, concluded that our appeal was untimely because it had not been submitted within 30 days of the determination. (A copy of the initial appeal is attached as Attachment 2). Ms. Artman advised appellants of their rights, under the Virginia Code, to appeal the decision to the Board of Zoning Appeals (Board).
We bring this appeal, pursuant to Virginia Code Section 15.2-2311, of the decision of the Zoning Administrator because notice of the earlier determination of the Deputy Zoning Administrator was not made available to appellants or the public until January 10, 2011, and thus our appeal of that determination is timely. We also ask the Board to reverse the determination of the Deputy Zoning Administrator because (1) it was based on inaccurate and incomplete information regarding the proposed School use; and (2) the determination regarding the scope of the School’s special use permit is plainly erroneous. We ask, therefore, that the Board accept our appeal, reverse the decision of the Deputy Zoning Administrator, and remand the matter to the Office of the Zoning Administrator for a further determination based on a complete record.
Background
On June 1, 2010, the School submitted a request for a zoning determination for certain new uses to its property. (A copy of the School’s request is attached as Attachment 2, Exhibit 2). In its request, the School asked whether it would need a use permit for (1) “the installation of synthetic turf on their existing field surfaces;” or (2) “the installation [of] field lighting on their existing fields.” (Attachment 2, Exhibit 2 at 1). On July 12, 2010, the Deputy Zoning Administrator determined that:
Lighting the athletic fields would expand the number of hours in a day that the fields are in use. It is my determination that the proposed lighting would require a use permit amendment. Furthermore, it is my determination that installation of synthetic field surfaces would not be a significant change or expand the hours of use and would not require a use permit amendment. (Attachment 2, Exhibit 1 at 1) (Emphasis added).
Although the Deputy Zoning Administrator’s determination was mailed to the School, no written or other notice was provided to any other “aggrieved party,” including the undersigned neighbors.
Four days after the Deputy Zoning Administrator’s decision, on July 16, 2010, the School applied for a special use permit for “the installation of field lighting on their existing fields.” (Attachment 2, Exhibit 3). The request stated that the field lighting “is part of a general upgrade of its existing athletic fields, which will require minor grading, landscaping and the installation of turf on their existing fields.” (Attachment 2, Exhibit 3 at 4). In the months since it filed its initial application, however, the School has provided additional information regarding its plans. This information demonstrates that, contrary to the brief mention of the project in its request for a zoning determination, O’Connell’s proposal implicates very substantial renovations and capital improvements to greatly expanded and re-oriented sports fields.
In its supplemental special use permit request dated December 17, 2010 (and made available to the public by the County on its web-site in a posting dated January 4, 2011), the School provided a “revised site plan” as well as other materials. (Attachment 2, Exhibit 4). Now captioned more accurately as an “athletic field improvement project,” the materials describe existing conditions and proposed improvements and makes plain how fundamentally the School plans to change its fields. Instead of simply “installing synthetic turf over existing fields” the School’s plans and diagrams show significantly enlarged, re-located, and re-oriented fields; facilities to accommodate both high school and collegiate events requiring significant demolition and excavation; the construction of numerous ancillary structures such as new bleachers, press box, dugouts, storage, concession building and restrooms; and the removal of a significant number of parking spaces. None of this information was provided to, or was available to, the Zoning Administrator when he issued his determination on July 12, 2010.
The School’s proposed athletic field improvement project is most fully described in a fact sheet provided by the School, and also made available to the public by the County on its web-site in a posting dated January 7, 2011. (Attachment 2, Exhibit 5). In that fact sheet, the School noted that “it was undertaking an athletic fields renovation project to address significant shortcomings of the current athletic facilities” and is “being planned in partnership with Marymount University.” O’Connell has advised the public that Marymount plans to use the fields and facilities for practices and games. The project includes very significant re-engineering and re-construction of the School’s existing sports infrastructure, including (1) redevelopment and relocation of the current rectangular field to include a new synthetic turf playing surface; (2) enlargement of the current rectangular field to provide regulation width for soccer; (3) extensive excavation of the parking lot and construction of a block retaining wall of approximately 300 ft. in length and up to 12 ft. in height, (4) construction of a new six-lane competitive running track including a six-lane straight away, (5) demolition and removal of the existing asphalt track; (6) demolition and removal of the existing bleacher system and its replacement with a new bleacher system for the stadium; (7) construction of new buildings for concessions, a press box, and public restrooms; and (8) reorientation of the baseball field and installation of new bleachers for baseball. (Attachment 2, Exhibit 5).
On January 10, 2011, in a posting on its web-site, the County made available to the public the July 12, 2010 determination of the Deputy Zoning Administrator that no special use permit is needed prior to “the installation of synthetic field surfaces” on the School’s existing fields. On January 24, 2011, appellants sought review of the Deputy Zoning Administrator’s determination. (Attachment 2). On February 2, 2011, the Zoning Administrator rejected the appeal, concluding that, because the Deputy Zoning Administrator’s determination was dated July 12, 2010 and appellants did not seek review until January 24, 2011, the appeal was untimely. (Attachment 1).
Discussion
As discussed more fully below, the Zoning Administrator’s decision to reject the appeal is erroneous because appellants received no written notice of the determination and most community members had no notice at all of the determination until its publication on the County web-site. Because the 30-day appeal period runs from the date of notice and because appellants filed their appeal within 30 days of the County’s January 10, 2011, posting of the determination on its web-site, the appeal is timely.
The Board should, therefore, review and reverse the Deputy Zoning Administrator’s determination regarding the scope of the School’s permit because (1) it is based on incomplete and inaccurate information, submitted by the applicant, concerning the scope of the project; and (2) the Deputy Zoning Administrator’s determination that the project does not constitute a “significant change” in the School’s use and will not “expand the hours of use” is plainly erroneous.
- The Appeal of the Deputy Zoning Administrator’s Decision Is Timely
Because the Deputy Zoning Administrator’s decision is dated July 12, 2010 and provides that the decision is final and not appealable unless appealed within 30 days, the Zoning Administrator concluded that appellants’ appeal – dated January 24, 2011 – was untimely. But the 30-day period cannot reasonably be deemed to run against parties – like appellants – who received no notice of the determination. Rather, the 30-day period should commence only after notice is given.
Va. Code Ann Section 15.2-2311 provides:
An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the locality affected by any decision of the zoning administrator or from an order, requirement, decision, or determination made by any other administrator in the administration or enforcement of [Article 7 of the Code] . . . . Notwithstanding any charter provision to the contrary, any written notice of a zoning violation or a written order of the zoning administrator dated on or after July 1, 1993 shall include a statement informing the recipient that he may have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within 30 days. The appeal period shall not commence until the statement is given. . . . The appeal shall be taken within 30 days after the decision appealed from by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof.
The meaning and scope of this provision has been interpreted recently by the Office of the Attorney General. (Opinion by Robert McDonnell, Virginia Attorney General to Honorable Mark Cole, Member, House of Delegates (June 16, 2008) (Attachment 2, Exhibit 6)). In his opinion, the Attorney General concluded that “any person who by virtue of a zoning violation is denied some personal or property right, legal or equitable, or upon whom a burden or obligation is imposed must receive a written notice or order of the violation.” (Attachment 2, Exhibit 6 at 1). According to the Attorney General, “the clear and unambiguous language of section 15.2-2311(A) requires that any written notice of a violation or written order issued by the zoning administrator must apprise the recipient that an appeal must be taken within thirty days of issuance of such notice or order. Furthermore, a written notice must be provided to any person aggrieved by the decision of the zoning administrator or from any order, requirement, decision or determination made by any other administrative officer who administers or enforces the [statute].” (Attachment 2, Exhibit 6 at 2 (emphasis added)).
As the Attorney General recognized, “aggrieved parties” are those on whom a burden or obligation is imposed different from that suffered by the public generally. (Attachment 2, Exhibit 6 at 2). It is indisputable that neighbors whose quality of lives and property values are potentially affected by the grant or denial of a special use permit are aggrieved parties entitled to appeal an adverse zoning determination. See, e.g., McGhee v. Board of Zoning Appeals, 57 Va. Cir. 47, 49 (Roanoke Cir. Ct. 2001) (persons “who own property, live and work in this neighborhood,” are aggrieved parties with standing to challenge the zoning administrator’s approval of a construction project that could affect the quality of their lives and the value of their properties); Carolinas Cement Co. v. Zoning Appeals Board, 52 Va. Cir. 6, 16 (Warren Cir. Ct. 2000) (undertaking a careful analysis of the meaning of “aggrieved persons” for purposes of the statute and concluding that if a “petitioner is directly involved or an adjoining property owner” then they are entitled to challenge “by right” use determination of zoning administrator).
The Attorney General also emphasized that the statute plainly requires that the period for appeal “shall not commence until the statement [informing a recipient of the right to appeal] is given.” (Attachment 2, Exhibit 6 at 2). He concluded, “[t]herefore, a local zoning administrator must provide a written notice to any person who has an immediate, pecuniary, and substantial interest in the decision of the zoning administrator or such other officer who administers or enforces Article 7.” (Attachment 2, Exhibit 6 at 2). Because appellants – aggrieved parties with immediate and substantial interests in the decision – received no written or other notice of the decision prior to last month, their appeal should be deemed timely.
The Attorney General’s opinion also finds support in case law construing Va. Code Section 15.2-2311. In Lilly v. Caroline County, 526 S.E.2d 743 (Va. 2000), for example, the Virginia Supreme Court considered whether an owner of real property in the vicinity of a radio tower could challenge a zoning administrator’s decision that construction of the tower was a use permitted by right. The Court assumed that near-by owners could properly appeal the determination and noted that the statute did not require that the administrator’s decision be in writing. The Court found, however, that appellant had received numerous notices of the determination through his thorough participation in the proceedings during which the decision was announced, including notice that he must appeal the decision to the board of zoning appeals. Id. at 745-76. Here, of course, there were no proceedings prior to the Deputy Zoning Administrator’s decision in which appellants could have been involved, and no oral or other notice of the decision prior to the January web-site posting.#
Appellants are clearly aggrieved parties within the meaning of the statute,# and are entitled to appeal “by right” determinations of the zoning administrator. Yet they received no written notice of the Deputy Zoning Administrator’s decision and most residents (including many appellants) had no notice at all of the determination until the decision was published on the County’s web-site on January 10, 2011. Because the statute provides unambiguously that the period for appeal should not be deemed to begin until such notice is provided, their appeal – filed on January 24, 2011-- is timely. As aggrieved parties, appellants cannot reasonably or equitably be held to an appeal deadline of which they were unaware. To hold otherwise would negate their right to contest an adverse determination of the Office of Zoning Administration, as provided in Virginia law. Because the appeal is timely, appellants ask the Board to review and reverse the determination of the Deputy Zoning Administrator, for the reasons set forth below.
- The Deputy Zoning Administrator’s Determination Was Based on Incomplete and Inaccurate Information
As noted above, the School’s request for a zoning determination was cryptic at best and misleading at worst. In its one paragraph June submittal, the School said only that it was seeking “the installation of synthetic turf on their existing field surfaces.” This submittal constituted the entirety of the information available to the Zoning Administrator when he made his determination. Thus – with no way to appreciate the true scope of the proposal -- the Deputy Zoning Administrator concluded that “installation of synthetic field surfaces would not be a significant change or expand the hours of use and would not require a use permit amendment.”
Subsequent information submitted to the County Planning Department makes plain, however, that the School is seeking major improvements to, relocation and enlargements of, and re-construction of its athletic fields. In addition, O’Connell has announced its interest in “partnering” with Marymount University and the Arlington County Department of Parks, Recreation and Cultural Resources for shared use of the improved fields.# None of this information was available to the Deputy Zoning Administrator when he made his decision. O’Connell’s athletic field improvements project represents a major capital investment on the part of the School – the largest in decades – with a very significant change in the athletic field footprint and activity level.
For this reason alone, we believe, the Board should reverse the decision of the Deputy Zoning Administrator and remand the matter to him for reconsideration. The Deputy Zoning Administrator should review O’Connell’s request for a special use permit with a full, complete, and accurate understanding of the very broad scope and magnitude of the project for North Arlington.
- The Deputy Zoning Administrator’s Decision to Waive Permit Requirements for the Field Renovations is Clearly Erroneous
Arlington County Zoning Ordinance requirements for R-6 and R-8 zones (the zoning applicable to our residential neighborhood) prescribes, in general, that permissible matter of right uses are limited to one-family dwellings, and limited compatible uses. Arlington Zoning Ordinance sections 5, 8, and 9. “Special exceptions” are permitted for certain uses, such as secondary schools like O'Connell, provided the applicant complies with the special use permit provisions of Arlington County Zoning Ordinance section 36.G. (Use permits). Arlington County Zoning Ordinance section 5.A.6.a.
Special use permits are required for any new or expanded use. It is clear that the “athletic field renovation project” proposed by O’Connell represents both a new and expanded use. As a preliminary matter, appellants are concerned that the School may never have received a permit from the County to construct its current athletic fields at all. Our review of the permit files referenced by the School and the Deputy Zoning Administrator (U-1159-55-1 and U-2110-72-2) reveal no permit authorizing the construction of athletic fields on O’Connell’s property. The absence of any such original permit is also consistent with the School’s representations when it sought its zoning determination. In its letter, the School noted that in 1955 it had been granted a special exception use permit for the erection of a high school and residences for fathers and sisters. In 1977, the School was granted an increase in enrollment to 1600 students. It is unclear to us when the fields were constructed, but no mention is made of any permit authorizing the construction of athletic fields. (Attachment 2, Exhibit 2).
In issuing his determination, the Deputy Zoning Administrator too summarized the permits granted to the School for limited purposes and goes on to state that “I have reviewed the approved permits and they are mute regarding field surfaces and lighting.” (Attachment 2, Exhibit 1). There is no indication in the letters or permit files, or in the determination itself, that the County has previously approved a special use permit for athletic fields for the high school. In that event, of course, any re-construction, re-orientation or enlargement of the fields would constitute a new or enlarged use, and would plainly require a special use permit.
Even if, however, the athletic fields were specifically approved or are otherwise deemed a customary accessory to high school use, it is plain that the major renovation planned by O’Connell constitutes a new and enhanced use requiring a new permit. With respect to new uses, the fields will accommodate a significantly greater variety of activities, including uses by third parties. With the enlarged track and regulation soccer/lacrosse/football and baseball fields, O’Connell will be able to fulfill its publicly-stated goal to host both officially sanctioned high school and collegiate games and athletic events. Indeed, the thrust of the O’Connell proposal is to encourage a wider range and intensity of uses.
Of particular concern to us is O’Connell’s overall goal of forging a strong athletic relationship with Marymount University and to permit Marymount to use the synthetic fields for NCAA-sanctioned events.# There can be no dispute that, whatever use was previously approved by the Zoning Administrator or County Board in O'Connell's prior special use permits, that use did not include "educational institution" use, defined in the Zoning Ordinance to mean colleges and universities. Such use could not have been permitted at O'Connell by a special use permit, as college or university use is only permitted as a conditional use in the S-3A and S-D zones. Arlington County Zoning Ordinance sections 3.A.10.c; 4.A.5.d. In addition, it is entirely possible that the synthetic fields will be used by other groups, particularly during the summer when O’Connell students are on summer break, for youth and adult leagues and other purposes. O’Connell has, for example, disclosed that it has also discussed “partnering” with the Arlington County Department of Parks, Recreation and Cultural Resources for youth and adult league athletic activities on the new fields.
The expanded use of the property to include collegiate sports and athletic programs, and potentially County sports and athletic programs, was neither evaluated by the County Board as part of the original special use permit, nor by the Deputy Zoning Administrator when he issued his decision. See, e.g., Virginia Psychiatric Hospital v. Zoning Appeals Board of Fairfax County, 47 Va. Cir. 36 (Fairfax Cir. Ct. 1998) (Board of Zoning Appeals properly reversed the Zoning Administrator’s decision and concluded correctly that hospital’s creation of a residential treatment facility for adolescents was a new or expanded use not within the scope of its original permit).
The synthetic fields will also greatly expand the hours of daily use. Indeed, one purpose of synthetic fields is, of course, to minimize seasonal and weather-related limitations on play. A memorandum provided to the County Board from Assistant County Manager Gabriela Acurio is particularly instructive. (Attachment 2, Exhibit 7). The County Board asked Ms. Acurio to summarize the County’s experience with synthetic fields and to compare pre-synthetic to post-synthetic field periods of use. In her memorandum, Ms. Acurio stated that field usage had increased at Wakefield from 200 hours to 1800 hours; at Greenbrier/Yorktown from 300 to 1700 hours; and at Washington-Lee High School from 600 to 1900 hours. These fields all had lights prior to the installation of synthetic turf and thus it can reasonably be assumed that much of the increased usage originates from the installation of synthetic turf alone (or from a combination of lighting/synthetic fields). Certainly this data, together with common sense, suggests very strongly that the Deputy Zoning Administrator erred (or was provided with insufficient information) when he determined that synthetic turf would not constitute a change in use or lead to an increase in the hours of use.
The increased kinds and hours of usage arising from the proposed athletic fields renovation project clearly trigger special use permit requirements. Indeed, it defies reason to exempt O’Connell from such requirements for one of the largest construction projects to be conducted in our residential neighborhood in its history. Only through the special use permit process can the County Board determine whether this project – which has generated enormous community concern and criticism – will adversely affect the health or safety of persons residing in the neighborhood; be detrimental to public welfare or injurious to property; or be in conflict with the County’s plans. Arlington Zoning Ordinance section 36.G.1.
Although we take no position here on the ultimate issue of whether a permit should be granted, we do want to emphasize the potential effects of the project on the neighborhood. The work contemplated as part of the project clearly implicates significant quality of life issues for neighborhood residents. Grading operations could be substantial and movement of fill on and off-site could greatly affect neighborhood peace and quiet and create nuisance dust.# Erosion, sediment control and storm water issues could affect the neighborhood streets and drains, including those in or adjacent to Tuckahoe Park. The loss of parking spaces envisioned by the project (a total of 60 spaces) could significantly impact neighborhood parking.
Typical use permit requirements could greatly mitigate such effects, by employing such commonly imposed use conditions as provisions for pre-construction meetings with the neighbors and civic associations and with departments of Arlington County; establishment of plans for temporary pedestrian and vehicular traffic circulation; creation of on-site parking and vehicle wash-out areas; the publication of construction hauling routes and times; establishment of time requirements for on-site construction activity (not earlier than 7:00 a.m., for example); prohibition on weekend hours of work; requirements regarding the development of a final site development plan; among countless other issues. The permit could also address special needs presented by the proximity of Tuckahoe Elementary School (abutting O’Connell) and the potential disturbance to normal school activities and student/parent traffic arising from the renovation. Absent a special use permit none of these issues will be examined by the County and mitigation measures will be entirely lacking and unenforceable.
The entire purpose of special use permits is to ensure that uses allowed by “special exception” in residential neighborhoods be “submitted to governmental scrutiny in each case to insure compliance with standards designed to protect neighboring properties and the public.” Board of Supervisors of Fairfax County v. Southland Corp., 297 S.E.2d 718, 721-22 (Va. 1982). By minimizing the nature and extent of the renovation project in its request to the Deputy Zoning Administrator, O’Connell’s proposal effectively avoids this inquiry. But zoning boards were created specifically “in order to apply their expert discretion to matters coming within their cognizance.” Virginia Psychiatric Co., Inc. v. Zoning Appeals Board of Fairfax County, 47 Va. Cir. 36 (Fairfax Cir. Ct. 1998). In fact, the entire purpose of administrative appeals is “to enable an administrative agency to perform functions within its special competence – to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies.” Parisi v. Davidson, 405 U.S. 34, 38 (1972) (emphasis added). We ask, therefore, that the Board accept our appeal, apply its expertise to the record and facts before it, reverse the Deputy Zoning Administrator’s determination, and remand it to the Office of the Zoning Administrator for reconsideration.
We acknowledge that Va. Code Ann. Section 15.2-2311 provides that no order, decision or determination of the Zoning Administrator shall be subject to change or reversal after 60 days have elapsed from the date of that order, decision or determination, if the applicant has materially changed his position in good faith reliance on that determination. To our knowledge, however, no construction work has begun on the project. Although some geotechnical borings apparently have been taken, the work is minimal in extent and would need to be undertaken by O’Connell in any event, if a permit is granted.# Moreover, this work would not constitute a “material change” as contemplated by the Code. In any event, the O’Connell special use permit application is still pending before the County, and the School is in no way be prejudiced by this appeal.
Conclusion
For the reasons set forth above, we ask the Board to accept our appeal as timely; reverse the decision of the Deputy Zoning Administrator; and remand this case for a further determination in light of the record. We also ask the Board to stay proceedings on the permit until it completes its determination and advise O’Connell to defer any construction activity on its athletic fields renovation project until after this appeal is resolved. Va. Code Ann. Section 15.2-2311.B (“an appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board that . . . a stay would . . . cause imminent peril to life or property . . .”).
Please contact John Seymour, Esq. at (703) 534-9132 or juliaseymour@att.net if you have any questions about the above. Written materials may be sent to the undersigned by mailing to John F. Seymour, 6535 North 27th Street, Arlington, Virginia 22213.
Thank you very much.
John Seymour, Esq.
Bill Adair
Jayne Bultena, Esq.
Julie Bruns
Melanie J. LaForce
Ruth Shearer
Eleanor Smith
David Swiger
Cc: Melinda Artman
Zoning Administrator
Marco Rivero
Planning Department
Peter Schulz
Planning Department
Tom Miller
Planning Department
Barbara Donnellan
County Manager
Members,
Arlington County Board
