PC #25. February 18, Arlington County Board 2100 Clarendon Boulevard Suite 300 Arlington, Virginia 22201

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1 February 18, 2009 Arlington County Board 2100 Clarendon Boulevard Suite 300 Arlington, Virginia SUBJECT: 2. ZONING ORDINANCE AMENDMENT: ADOPTION OF ORDINANCE TO AMEND, REENACT, AND RECODIFY SECTION 37.VIOLATIONS AND PENALTIES, OF THE ARLINGTON COUNTY ZONING ORDINANCE. The purpose of this amendment is to decriminalize violations of zoning ordinance and make them civil penalties subject to fines as allowed by Code of Virginia, ranging from $200 for initial violation to $500 for subsequent violations up to maximum of $5,000. The amendment also proposes to make demolition of historic structure without certificate of appropriateness as civil penalty with fine equal to twice assessed value of property. To facilitate this, amendment to delete criminal sanctions in 31A Historic Districts, is also proposed. The proposed amendment will retain as criminal violations: signs on public property or rights-of way, land disturbing activity, and any violation that results in physical injury to person. The proposed amendment allows prosecution of civil violations as criminal violations when maximum civil violation of $5000 has been imposed and violation has not been rectified. Finally, the proposed amendment allows zoning administrator to seek search warrant to determine if zoning violations have occurred. RECOMMENDATION: Adopt the ordinance attached to the staff report, and add a provision to request that staff provide to the Planning Commission six months following enactment of the ordinance amendment, and annually thereafter, a report summarizing the number of cases heard under this ordinance, the nature of the violations, and the resolution of those cases. Dear County Board Members: The Planning Commission heard this item at its February 9, 2009 meeting. Melinda Artman, the Zoning Administrator, made a presentation, describing the reasons for the proposed changes and the specific proposal. There were no public speakers. PC #25

2 Planning Commission Discussion Chair Fallon reported that the Zoning Committee (ZOCO) heard this item on November 19 and December 10. Initially, ZOCO members were concerned about the scope of this proposal, which is broader than the original guidance given by the County Board during the accessory dwelling hearing. However, further information and discussion at ZOCO provided insight as to the effectiveness of this approach. He noted that Ms. Artman successfully used this process in another jurisdiction. Decriminalizing the process creates more effective tools for staff to respond to community complaints. Commissioner Dorsey clarified with Ms. Artman an apparent inconsistency regarding frequency of citing the same penalty, and proposed violations to remain as criminal violations, are due to requirements and language in the Code of Virginia. Ms. Artman responded that in the staff report, formatting of the proposed language could be improved for clarity. She also noted that the Zoning Administrator can work out longer correction periods for violators who cooperate but face a financial burden. Commissioner Serie clarified with Ms. Artman that the proposal seems to simplify the steps staff would need to take to enforce violations, that a violation that is not appealed would provide prima facie evidence for any necessary additional prosecution in court, and that there would be several possible options for the County to pursue persistent violations. Commissioner Sockwell asked for an explanation of the use of injunctions. Ms. Artman provided an example of a violator who absolutely refuses to comply or creates a nuisance or hazard where injunctive relief could also be used to enforce overcrowding regulations. In the example of an inoperable vehicle, zoning enforcement staff could refer the violation to Code Enforcement, where under the authority of Care of Premises or Property Maintenance codes, the County could have it towed, instead of going through the steps for imposing civil penalties. In response to Commissioner Pebley s concerns about the potential need for additional staff or after-hours enforcement, Ms. Artman said that although she was not fully certain, staff has not received any feedback that the County is not acting quickly enough and noted that Arlington prefers taking a proactive approach and looks for blatant violations. Staff also has the opportunity for flexible scheduling to accommodate after hours inspections. Noting that the Courts had been consulted about this new process, Commissioner Pebley suggested that staff also confer with the Commonwealth s Attorney about this proposed change. Commissioner Pebley is also concerned about violations issued to absentee property owners, who may not be in situations or locations to promptly learn of a violation, such as military personnel or State Department employees assigned overseas. Ms. Artman stated that the Code and laws of Virginia state that the owner is responsible nonetheless. She observed that the actual notification process for violations would give a violator two notices and 20 days before a fine would be assessed. Regarding language about the fines for demolishing a historic property Commissioner Pebley also confirmed with Ms. Artman that the value of a historic structure is considered to that of the most recent annual tax assessment on record at the time of the destruction. 2

3 Commissioner Hunt clarified the definition of commercial truck with Ms. Artman, and asked about a letter asserting violations at the Randolph Square site plan. Ms. Maher explained that the violation concerned marketing materials for the new parking garage that did not also provide transit options. The materials have since been revised. Commissioner Dorsey asked if that kind of violation would be subject to civil penalties or is just a site plan condition violation. Ms. Artman said it could be enforced either way. Commissioner Malis appreciates this response that originated with accessory dwelling units (ADU) and confirmed that it would include violations to the ADU ordinance. She discussed with Ms. Artman the timing of enforcement efforts using civil penalties. Ms. Artman said that, depending on the situation and willingness of violators to comply, resolution of violations can take up to days. Because of due process rights, resolution will never be as fast as some people want it to be, but it won t be as beholden to the courts in terms of timing. When assessing fines, staff can find as many violations as possible to reach the maximum fine as quickly as possible. Chair Fallon asked about the types of violations found with non-compliant ADUs. Ms. Artman gave an example in Maywood which has violations for failure to follow the ordinance, setbacks, the definition of family, and the maximum of one dwelling on a lot, at least. Staff hasn t started that violation process yet. Chair Fallon added that the intent is for Arlington to help move expediently with violations, but maintain flexibility to work with anyone who wants to cooperate in good faith. The County would be more willing to use this tool than the existing process. Some elements are constrained by the Code of Virginia. Planning Commission Motion Commissioner Dorsey moved that the Planning Commission recommend that the County Board adopt the ordinance attached to the staff report. Commissioner Malis seconded the motion. Commissioner Savela noted that she will support the motion. Arlington County will use this tool in a compassionate way, although it could be used as a hammer by citizens. She hopes that the County will use judgment in which violations to pursue. Overcrowding should be addressed particularly for hazardous conditions. Commissioner Dorsey noted that codifying this tool can reduce discretion, and the outcome of that can be difficult. Some residents may retaliate against their neighbors with code and zoning complaints. Overall, this is a well crafted plan and makes a lot of sense. Commissioner Pebley will vote for this but has reservations, particularly with regard to some circumstances where senior citizens have problems keeping up with their property. He suggested that local community civic associations could be contacted sometimes to help the elderly in some cases. While this change will provide teeth for the ADU ordinance, he hopes the County will exercise common sense in judicious use of the new regulations. 3

4 Commissioner Hunt stated that, once you put a law on the books, you have to be fair. Absentee landlords still have a responsibility for their properties. The County will have a certain amount of discretion. Commissioner Ciotti commends the good work and will vote for this. With the economic downturn, she has reservations about families taking in additional members who have lost their jobs, and asked whether the County has policies on how this situation would be approached. Ms. Artman responded that family members don t count toward a zoning violation of the definition of family. Commissioner Serie concurs with his fellow commissioners on the need for compassion but also enforcement. During one of the public hearing sessions, he heard about equitable enforcement that staff would look at other properties on a block if there was a complaint. Would this policy be used? Ms. Artman noted that the Zoning Administrator has become responsible for the zoning inspectors. If they find a blatant and willful violation, she expects inspectors to address it, but not to go looking for other problems. Sometimes people will try to use the zoning ordinance as a club to beat their neighbors, and we use care on how we wield authority. Commissioner Sockwell is sanguine about how this will work out. This tool is a major improvement. Historic district fines would have real teeth. As far as enforcement goes, we will need to see how things work out. Most staff members have common sense. Commissioner Savela asked for unanimous consent to amend the main motion to add a provision to request that staff provide to the Planning Commission six months following enactment of the ordinance amendment, and annually thereafter, a report summarizing the number of cases heard under this ordinance, the nature of the violations, and the resolution of those cases. There was no objection, so the motion was amended. Chair Fallon associates his comments with Commissioners Sockwell and Hunt. As mentioned, the concept of applying civil penalties arose from the desire to enforce the ADU ordinance compassionately. However, some residents noted during the earlier ADU- related hearings, that overcrowding and code enforcement were already major issues requiring immediate attention. Chair Fallon views this ordinance as a step in the right direction and encourages identifying and resolving problems. It will give staff the necessary tools to be more effective. He appreciates Commissioner Savela s amendment. He would also encourage Ms. Artman to work with County staff to educate the public about this tool. The Planning Commission voted 10-0 to support the motion. Commissioners Ciotti, Cole, Dorsey, Fallon, Hunt, Malis, Pebley, Savela, Serie, and Sockwell supported the motion. 4

5 Respectfully Submitted Arlington County Planning Commission Lisa E. Maher Planning Commission Coordinator 5