Jean wrote an email to The Supervisor’s Aide:
“Dear Supervisor’s Aide,
As you know we spoke last night during the public comment period of the Board meeting. I feel that the Board understood our situation and is compassionate towards us. Although the general consensus was that we should probably seek a special exception, we were able to meet with County Supervisor and Supervisor Gross a little more after the meeting. Once we explained how the exception would be to a rule that should not apply to us,County Supervisor mentioned that she would be willing to speak with Mr. County Attorney regarding his recommendation to County Official 5 about our site plan. Granted, Ed and I will be starting the special exception process regardless, but if there is any way to avoid it, you know that is the most preferable course of action for us.
We passed out packets that include very telling photographs of how the entire road washes out past our driveway, on the way to the Stonecrest subdivision where 5 other houses have been approved in the last year, before the water level ever reaches our driveway. I am happy to send you extra copies of those photos as needed. I also mentioned to County Supervisor that I had sent you a copy of our attorney’s letter to County Official 5. If you need another copy, of course I can send that as well.
In the event that your office does have a chance to speak with Mr. County Attorney about our situation, I have listed here our 3 most important points regarding oursituation:
1. Our site plan, which was subject to their review, had no portion of it in the floodplain. Our house site, and the part of the drive that access it are outside the one hundred year floodplain. However, they site floodplain regulations 2-9-03subsection B (access to site) as the reason we cannot build. They should not be citing floodplain regulations to reject a plan that lies outside of the floodplain.
2. The Public Facilities Manual, specifically section 6-0704.1, was cited again as a reason for denial. Our plan was not denied on the basis of the PFM, it was denied on the zoning ordinance. However, this PFM section states, “The developer must provide factual information that any proposed structure will not adversely affect the existing 100-yr flood level; and that adequate emergency access is available to the structure during periods of maximum flooding….” Considering the fact that 5 houses have been approved in the last year whose access is even more limited than ours, I would submit that we have “adequate emergency access.” It is certainly more adequate than everyone else’s, and adequate is a very subjective word. Furthermore, we have offered to keep a boat and build a bridge. Our local fire station keeps a boat and has access to a helicopter. If those do not qualify as “adequate” I would like to ask what in the world adequate emergency access our neighbors who were approved provided. Fairfax County has already set its precedent for our neighborhood. They should apply it to our plan accordingly. Continuing with the PFM, the letter from Mr. County Peon states that our hold harmless letter is for ZO 2-903 (8) for accessory structures. This is simply NOT true. It seems the County was incapable of reading a mere 3 paragraphs further down in the PFM. Not only does it clearly state in 6-0705.3 that the County is not liable, “additionally, the grant of a permit or approval of a site, subdivision or land development plan in an identified floodplain area or flood hazard area shall not constitute a representation, guarantee, or warranty of any kind by any official or employee of the County of the practicability or safety of the proposed use, and shall create no liability upon the County, its officials or employees;” it mentions that we can submit a hold harmless agreement, and we have done so: “6-0705.4 In the event that the Director issues a permit under the provisions of the PFM, the applicant may be asked to execute an agreement holding the County harmless from the effects caused by the construction or existence of the permitted use. Such an agreement shall be recorded among the land records of the County.” They cannot reject our hold harmless agreement by saying it applies to accessory structures only.
3. Our last pointis that the driveway is over 150 years old and needs no improvements. For at least the last 20 years it has been observed by Ed and his family. (20 years ago predates the 2-9-3 access to site requirement) The driveway has always been used. People ride their horses on it, hike on it, it was the entrance to a functioning Christmastree farm for many years, we use it to accessour lot, hunters use it. It has never been abandoned. As Fairfax County’s OWN definition of a driveway only stipulates that the road must access a lot, NOT access a dwelling, this road has been in compliance of that definition for at least 20 years. It is therefore a pre-existing, non-conforming legal use and should not inhibit our building. The letter from Mr. County Official 5 states that the “use of the driveway for recreational use of the property is simply inapplicable to the proposed principal residential use.” This is simply not true. It was used as the entrance to a functioning business for many years. Furthermore, the County’s own definition of a driveway makes no such distinction.
I strongly believe that these 3 excruciatingly important details, coupled with the fact that we have been so mistreated and ignored by the DPW&ES and deserve to finally build on our lot not to mention that we got the impression the Boardwould most likely approve a specialexception leads me to believe that it is only logical for the DPW&ES to approve our plan and not make us jump through more hoops.
I hope this makes sense. I also hope this works. Ed and I are working on our Special Exception packet, but it would be wonderful if DPW&ES could see the logic in our argument before we spend at least $3000 more dollars and wait yet another 6 months.
Thanks so much, Supervisor’s Aide. I really cannot stress how much we value and appreciate yours and County Supervisor’s continued support for our situation.
The Supervisor Aide’s Response:
Thanks for providing the information; I will provide your “points” to Mr. County Attorney as requested. I do believe, however, that seeking a special exception is your best course of action. It would appear, from your e-mail below, that you have gained some understanding from the Board, and with County Supervisor’s support, your special exception may, in all likelihood, be approved. You will then be able to move forward and build your home.
I suggest you speak with the folks in the planning and zoning department to move forward on filing your special exception.
If you have any questions or just want to talk, please call me. We are here to help you through this process as needed.