|4104 Woodlark Drive.|
The project, at 4104 Woodlark Drive, would disturb more than 2,500 square feet of a resource protection area (RPA), so it’s up to the Chesapeake Bay Preservation Ordinance Exception Review Committee (ERC) to decide whether to approve it. The ERC is holding a hearing on the proposal Dec. 12.
Less than a handful of cases like this come up in a year, but proposals to build in RPAs could become more of an issue as the amount of land available for development keeps shrinking, especially in the more built-out areas of Fairfax County.
Several environmental activists and the Braddock District Land Use and Environment Committee opposed the project at an earlier hearing because of a concern that it could set a precedent for allowing more development in flood zones. There are three other undeveloped properties on Woodlark Drive.
The Woodlark case would not set a precedent, says Anne Cissel, spokesperson for the county’s Land Development Services, because, “each case is unique and considered on its merits.” The extent of the RPA encroachment, the constraints of each piece of land, and the efforts by applicants to mitigate the impact on the RPA are taken into account in each case, she says.
The Woodlark Drive situation is complicated, but here’s a brief summary:
Sheila Konecke, the owner of a HomeVestors franchise, bought the unimproved lot on Woodlark Drive in the Fairfax Hills subdivision just outside the beltway in 2015 for $330,000 with a plan to build a single-family home there even though 80 percent of the property is in an RPA.
In May 2016, county staff administratively approved an exception to the county’s Chesapeake Bay Preservation Ordinance allowing for the construction of a 1,700-square foot home in the RPA but at least 50 feet from the stream that runs through the property.
Konecke subsequently began clearing trees in accordance with an approved grading plan.
A neighbor, S. Richard Rio Jr., then sued, citing a deed approved decades ago that requires a 75-foot front yard setback. In July 2017, the Fairfax County Circuit Court issued a preliminary injunction prohibiting the construction of a building within 75 feet of the front yard.
There is an alternative to developing in a flood zone. Landowners can seek a conservation easement from the Northern Virginia Conservation Trust and qualify for a tax break.Konecke then revised the plan and requested an exception to the RPA rules citing a provision in the Chesapeake Bay Preservation Ordinance that allows an exception based on “loss of buildable area.” Approval of the exception would allow the house to be located less than 50 feet from the stream but beyond the 75-foot setback.
On Dec. 6, 2017, the ERC held a public hearing and deferred a decision to Feb. 7, 2018. At that point, the ERC denied the request, as the lawsuit was still pending. The parties subsequently settled out of court.
On March 8, 2018, Konecke filed an appeal of the ERC decision, based on the argument that the ERC acted outside of its jurisdiction. She urged the Board of Supervisors to overturn the ERC decision and approve the exception. It was on the board agenda for the June 19, 2018, board meeting but the application was withdrawn at the last minute.
Konecke is now requesting the ERC allow the project to go forward and is expected to submit revised plans to reduce the house’s footprint in the flood zone, says Marcia Pape, senior legislative assistant for land use in the office of Braddock Supervisor John Cook.
The Chesapeake Bay Preservation Ordinance allows the ERC to approve an exception for loss of buildable area in an RPA where the total disturbance is limited to 10,000 square feet with no more than 5,000 square feet of impervious area within the RPA. The applicant proposes 7,568 square feet of disturbed area and 2,711 square feet of impervious area.