fairfax board of zoning appeals county · board of zoning appeals public hearing date: march 11,...

FAIRFAX COUNTY

BOARD OF ZONING APPEALS

PUBLIC HEARING DATE: March 11, 2020 TIME: 9:00 AM

VIRGINIA

March 4, 2020

STAFF REPORT

APPEAL APPLICATION A 2015-DR-027 APPEAL APPLICATION A 2015-1)12-028

DRANESV1LLE DISTRICT

APPELLANT:

LOCATION:

TAX MAP REF:

ZONING DISTRICTS:

SITE ARE-A:

NATURE OF APPEAL:

Sweet Leaf, Inc. (A 2015-DR-027) Juliano Properties, Inc. (A 2015-DR-028)

1359 Chain Bridge Road

30-2 ((12)) 4E1

C-6, H-C, SC, CRD

7,323 square feet

Appeal of a determination that the appellants are allowing and/or operating a fast food establishment with a Non-Residential Use Permit issued for a retail sales establishment, on property in the C-6, H-C, SC, and CRD Districts in violation of Zoning Ordinance provisions.

SDW

For information, contact the Zoning Administration Division, Department of Planning and Development, 12055 Government Center Parkway, Suite 807, Fairfax, Virginia 22035-5505, 703-324-1314.

American with Disabilities Act (ADA): For special accommodations, call 703-324-1334 (TTY 711 Virginia Relay Center) 48 hours in advance of the meeting to make the necessary arrangements.

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A 2015-DR-027 & A 2015-DR-028

APPEAL APPLICATION

A 2015-DR-027

A 2015-DR-028

SWEET LEAF, INC., A 2015-DR-027 Appl. under sect(s). 18-301 of the Zoning Ordinance. Appeal of the rescission and reissuance of a determination that the appellant, which is a fast food establishment, is occupying premises with Non-Residential Use Permit #90890071 that was issued for a retail sales establishment, on property in the C-6, H-C, SC, and CRD Districts in violation of Zoning Ordinance provisions. Located at 1359 Chain Bridge Rd., McLean, 22101, on approx. 7,323 sq. ft. of land zoned C-6, H-C, SC, and CRD. Dranesville District. Tax Map 30-2 ((12)) 4E1. (Concurrent with A 2015-DR-028).

JULIANO PROPERTIES, INC., A 2015-DR-028 Appl. under sect(s). 18-301 of the Zoning Ordinance. Appeal of the rescission and reissuance of a determination that the appellant is allowing a tenant, which is a fast food establishment, to occupy premises with Non-Residential Use Permit #90890071 that was issued for a retail sales establishment, on property in the C-6, H-C, SC, and CRD Districts in violation of Zoning Ordinance provisions. Located at 1359 Chain Bridge Rd., McLean, 22101, on approx. 7,323 sq. ft. of land zoned C-6, H-C, SC, and CRD. Dranesville District. Tax Map '30-2 ((12)) 4E1. (Concurrent with A 2015-DR-027).

A 2015-DR-027 & A 2015-DR-028

DESCRIPTION OF APPEAL

Appellants: Sweet Leaf, Inc. (A 2015-DR-027); Juliano Properties, Inc. (A 2015-DR-028)

Property Description: The subject property is located on the east side of Chain Bridge Road north of its intersection with Bravvner Street.

The property is zoned C-6, Community Retail Commercial District, Highway Corridor Overlay District (H-C), Sign Control Overlay District (SC), and located within the McLean Commercial Revitalization District (CRD). The property consists of approximately 7,323 square feet of land, is developed with a 1,651 square foot structure and contains 12 parking spaces. A copy of the zoning map showing the subject property is provided on the previous sheet.

Appellant's Position: The appellants' applications and basis for appeal are set forth in Attachment 1.

ZONING ORDINANCE PROVISIONS

The provisions of the Zoning Ordinance, which are germane to this appeal, are listed below. The complete text of these provisions is enclosed as Attachment 2.

• Sect. 2-304, Special Exception Uses

• Par. 26 of Sect. 11-102, General Provisions (Off-street Parking)

• Sect. 18-701, Permit Required for Occupancy or Use

• Sect. 18-706, Permit Not To Validate Any Violation

• Sect. 20-300, Definition of FAST FOOD RESTAURANT (OLD), RESTAURANT (current), and RETAIL SALES ESTABLISHMENT

BACKGROUND

• On February 12, 1997, Non-Residential Use Permit (Non-RUP) #A-1997-0296 was issued to Sun Queen Productions for a retail sales establishment at the subject property. The next tenant on the site, Antiques and Greatstuff, was issued a Non-RUP (#A-1997-1706) on August 28, 1997, for a retail sales establishment. Then on January 14, 2002, Non-RUP #A-2002-0043 was issued to Sage, Inc. for a retail sales establishment at the subject property.

A 2015-DR-027 & A 2015-DR-028

• On November 8, 2002, Non-RUP #A-2002-1740 was issued to Moorenko's Ice Cream Café for a retail sales establishment at the subject property. However, this was an incorrect designation for the use because an ice cream shop is not a retail sales establishment. At the time, an ice cream shop should have been classified as a fast food restaurant.

• On March 30, 2009, Non-RUP #90890071 was issued to Sweat Leaf for a retail sales establishment. When applying for this Non-RUP, a representative for Sweet Leaf stated the new Non-RUP was needed for a change in tenant only, but no change to the type of business on the property, most likely because it was a food-oriented use that was still going to be a food-oriented use. As a result, the Non-RUP was again incorrectly issued based on the representations made by the tenant and the previous incorrect Non-RUP.

• On July 21, 2015, a complaint was received by the Department of Code Compliance (DCC) alleging that customer vehicles were parking at an adjacent property. In addition, the complaint alleged that the property was operating as a restaurant, but that its Non-RUP was issued in 2009 for retail sales.

• On July 23, 2015, DCC Investigator Chip Moncure visited the subject property but did not enter the building. Based on his observations from the parking lot, he noted that the business appeared to be operating most similar to an eating establishment rather than a retail sales establishment. A follow-up inspection on August 3, 2015 confirmed that Sweet Leaf had a Non-RUP for retail sales, incorrectly. DCC initially determined that the tenant was operating most similar to an eating establishment, and was providing meals in a sit-down setting with breakfast, lunch, and dinner.

• On August 3, 2015, a Notice of Violation (NOV) was issued to both the tenant and property owner for being in violation of Sect. 18-701 of the Zoning Ordinance, for operating an eating establishment, with an incorrect Non-RUP for a retail sales establishment. However, based on further staff analysis of the business operation on the property, it was determined that Sweet Leaf Inc. was operating as a fast food restaurant. As a result, on September 15, 2015, the August 3, 2015 NOV was rescinded, and a revised NOV was reissued for operating a fast food establishment in the C-6 District without special exception approval of a correct Non-RUP.

• The tenant, Sweet Leaf, Inc., filed an appeal on October 7, 2015, and it was accepted on November 6, 2015. The property owner, Juliano Properties, Inc., filed an appeal on October 14, 2015, and it was accepted on November 6, 2015. The public hearing for both applications were originally scheduled for January 13, 2016.

• After having requested more time to come into compliance, Sweet Leaf subsequently filed a special exception application (SE 2017-DR-019) to permit the fast food restaurant to remain at the subject property. During the review of the special exception, the appeal public hearing was deferred multiple times to allow time for the SE process to be completed.

A 2015-DR-027 & A 2015-DR-028

• Subsequently, the appeal public hearing was further deferred to allow time for Zoning Ordinance Amendment ZO-18-469 to be processed, which proposed changes to the categories of restaurant uses.

• On January 28,2018, Zoning Ordinance Amendment ZO-18-469 was adopted by the Board of Supervisors, which amended the definitions and use limitations for "restaurant uses" in the County. As a result of the changes to the Zoning Ordinance, the existing use on the property was recategorized as a "restaurant", which did not require a special exception, as it was a use now permitted by right. As such, the violation for operating without an SE was rendered moot.

However, issues related to obtaining a valid Non-RUP still remain, and the issue facing the appellant is meeting the parking requirement. Numerous deferrals of the appeal public hearing have been granted to allow the appellant time to obtain a Non-RUP, namely to pursue approval of a parking reduction by the Board of Supervisors.

APPELLANT'S SUMMARY

The original appeal application filed by the owner of Sweet Leaf, Inc., Mr. Andre Matini, contended that the prior tenant of the subject location, Moorenko's Ice Cream Café was classified as a retail sales establishment on their Non-RUP, and in 2009, Sweet Leaf took over the space and represented that they would not be making changes to the inside of the facility. As such, the use listed on the previous Non-RUP was carried forward. The applicant further contended that a retail sales establishment is a permitted use in the C-6 District, and since it had been more than 60 days since the Non-RUP was issued, that it was valid Non-RUP.

The owner of the property, Juliano Properties, argued in the original appeal application submission that the property owner cannot be found guilty of a zoning violation for allowing someone else, in this case the tenant, Sweet Leaf, to violate the Ordinance. They contended that the property owner had not violated the ordinance. Juliano Properties also supported the arguments made by the tenant.

ZONING ADMINISTRATOR'S POSITION

There are two primary issues in the subject appeals:

• The requirement for special exception approval for the previously designated fast food restaurant, which has been rendered moot due to adoption of Zoning Ordinance Amendment ZO-18-469, and

• The requirement to obtain a Non-RUP for the now designated restaurant use on the subject property, which requires, in part, satisfying the minimum parking requirement for the use.

Special Exception Requirement

As noted above, since filing the appeal in 2015, the Board of Supervisors adopted Zoning Ordinance Amendment ZO-18-469 on January 23, 2018. This amendment deleted the definitions

A 2015-DR-027 & A 2015-DR-028

for eating establishment and fast food restaurant, and the use limitations for fast food restaurants, and established the definitions for "restaurant," "restaurant with drive-through," and "carryout restaurant" in the Zoning Ordinance. The amendment also updated the zoning district in which restaurants, restaurants with drive-through, and carryout restaurants are permitted by-right, by special permit, and by special exception. The amendment took effect on January 24, 2018, and as a result of this amendment, the use on the property, which was identified as a fast food restaurant at the time of the issuance of the NOV, is now defined as a restaurant use. In addition, a restaurant use is now permitted in the C-6 District by right. Therefore, a special exception is no longer required to permit the use on the property, and the violation for establishing a fast food restaurant on the property without the approval of a special exception has been rendered moot.

Non-RUP

As noted in the background information, the previous tenant at the subject location was Moorenko's Ice Cream Café. That tenant was issued a Non-RUP for a retail sales establishment, despite the fact that the use was an ice cream shop. County records do not show what information was provided with the Non-RUP application for Moorenko's Ice Cream Café, however several previous tenants were all retail sales uses. When the current tenant, Sweet Leaf Inc., applied for a Non-RUP in 2009, they informed County staff that the application was for a change in tenant only, with no changes in the overall use on the property, which were food related. As a result, a Non-RUP was issued for the same use as the previous tenant, which was incorrectly listed as retail sales. However, County records do not specify the information provided with the Non-RUP application for Sweet Leaf. It appears that the Non-RUP was issued in error, based on the fact that the business operations on the property are not in accordance with the definition of retail sales establishment contained in Article 20 of the Zoning Ordinance (see Attachment 2). The Zoning Administrator correctly determined in the NOV that the Non-RUP issued in 2009 does not reflect the current use of the property. Sect. 18-706 states that "(n)o Residential or Non-Residential Use Permit shall be deemed to validate any violation of any provision of any law or ordinance. As such, the issuance of an incorrect Non-RUP does not remove the requirement for the existing tenant on the property to have a valid Non-RUP for the correct use.

Parking Requirement

In order to bring the property into compliance with the Zoning Ordinance provisions, a valid Non-RUP must be obtained for the restaurant use on the property. In order to obtain a Non-RUP, it must be demonstrated that the subject property can provide the minimum number of parking spaces required for the use. In the case of the subject property, there are 12 existing parking spaces. The Zoning Ordinance Amendment referenced above established new minimum parking requirements for restaurant uses (see Attachment 2). Under the new standards for restaurants, existing establishments do not need any new approvals unless they plan to redevelop or expand. Existing establishments with prior approvals are "grandfathered" with respect to the minimum required parking, when the new parking requirements would result in the need for additional parking.

In the case of Sweet Leaf, prior to the Zoning Ordinance Amendment, the minimum required parking requirement for a fast food restaurant was one space per two seats for table and/or counter seating. The existing restaurant has approximately 45 seats, which would result in a minimum requirement of 23 parking spaces. The subject use does not meet the minimum parking requirements under the old standards, and as shown below the new standard actually results in a

A 2015-DR-027 & A 2015-DR-028

lower requirement. The new standards state that based on the size of the building, which is 1,651 SF, the restaurant would be subject to the minimum parking requirements for restaurants with a gross floor area less than 5,000 SF, which is ten spaces per 1,000 SF of gross floor area. Based on that calculation, the minimum required number of parking spaces for the subject restaurant is 17 spaces. Additionally, since the subject property is located in the McLean Commercial Revitalization District, up to a 20% parking reduction may be granted by the Board of Supervisors (BOS) when it is demonstrated and determined that the reduction is in furtherance of the goals of the Commercial Revitalization District. A full 20% reduction of the minimum required parking for the subject property would result in a minimum of 14 required parking spaces, which still exceeds the available 12 spaces. Due to the size of the property, there is not sufficient area to provide any additional parking spaces on the property. However, the appellant has coordinated with the Dranesville District Supervisor's office and Land Development Services (LDS) to pursue a parking reduction beyond the 20% reduction that can be granted administratively in the CRD. Such a reduction will require Board of Supervisors' approval. The appellants had previously submitted a parking reduction application, and that submission was deemed to be insufficient. Since that time, the appellant has not submitted the required materials to complete the submission, despite the public hearing before the BZA having been deferred for several months to accommodate this process. Therefore, the parking reduction application is currently not progressing, and as such the property continues to be in violation of Sect. 18-703 of the Zoning Ordinance.

CONCLUSION

The use of the property, which was originally designated a fast food restaurant, is now considered a restaurant in the Zoning Ordinance, which is a by right use in the C-6 District, therefore that portion of the NOV has been rendered moot. However, a valid Non-RUP is still required in order to bring the use into compliance. Based on the minimum parking requirements for a restaurant use, the subject property does not contain the minimum number of parking spaces required, and in order to come into compliance is seeking a parking reduction from the Board of Supervisors. The appellant has previously coordinated with the Dranesville District Supervisor's office as well as the Department of Land Development Services, however after receiving feedback on their initial application, which was insufficient to proceed, they have not followed up with a revised application for several months. Therefore, staff requests that the BZA uphold the Zoning Administrator's determination that a Non-RUP is required, as set forth in the NOV dated September 15, 2015.

ATTACHMENTS:

I. Appellant's Application and Basis for Appeal 2. Applicable Zoning Ordinance Provisions 3. Non-Residential Use Permits (Moorenko's Ice Cream Café & Sweet Leaf) 4. Inspection Photo & Aerial

ATTACHMENT 1

COMMONWEALTH OF VIRGINIA COUNTY OF FAIRFAX

APPLICATION FOR APPEAL

APPLICATION NO. /4,g -0/ rC /)/4-?-og (Assigned by Staff)

NAME OF APPELLANT: Sweet Leaf, Inc.

Please type or Print in Black Ink

FAIRFAX COUNTY

Z

OCT 07 2015 I

DIVISION OF

ONING ADMINISTRATION

RECEIVED

NATURE OF THE APPEAL: Appeal of the Notice of Violation. Appellant disagrees with the allegations and conclusions contained in the Notice of Violation.

DATE OF ORDER, REQUIREMENT, DECISION, DETERMINATION OR NOTICE OF VIOLATION WHICH IS SUBJECT TO THE APPEAL September 15, 2015

HOW IS THE APPELLANT AN AGGRIEVED PERSON?: See attached Statement of Support

IF APPEAL RELATES TO A SPECIFIC PROPERTY, PROVIDE THE FOLLOWING INFORMATION:

POSTAL ADDRESS OF PROPERTY: 1359 Chain Bridge Road, McLean, VA 22101

TAX MAP DESCRIPTION: 30-2 12 0004E1

William B. Lawson, Jr., Agent for Appellant Typo or Print Name of Appllant or A t

‘atUre of Appellant or Agent

6045 Wilson Boulevard, Suite 100, Arlington, VA 22205 Address

703-534-4800 Telephone No: Home Work Cell

Please type or print name, address, and phone number of contact person if different from above:

DO NOT WRITE IN THIS SPACE 0 f \ Q 0‘ Ucl E Pt. Lt. '161

Total Area (Acres/Square Feet): -7 \ a -

Present Zoning: a, . .5c C. D Supervisor District: DC:i\N.).,501'ie

i a / CD r'7 bL5 Application Fee Paid: $ (0 C40 a° / i / Li ) / 1.f

Subdivision Name:

T---

Date application received:

Date application accepted:

8/2013

THE LAW OFFICE OF

C .N WILLIAM B. LAWSON, P.C.

William B. Lawson, Jr., Esquire [email protected]

October 5,2015

STATEMENT OF SUPPORT

Please consider this to be the Statement of Support for the appeal filed by Sweet Leaf, Inc. ("Tenant") to the Notice of Violation ("Notice") dated September 15, 2015.

The undersigned represents the Tenant. The Tenant is aggrieved because the Notice, if not reversed, will prevent the continued business that is now being conducted at the property. If the Tenant has to file for a new Non-Rup and/or Special Exception as suggested in the Notice, there could be a significant cost associated with processing the Non-Rup and/or Special Exception, and the Tenant may have to reduce the number of seats. In addition, the Special Exception may not be granted.

In support of the appeal, the Tenant submits the following:

The Zoning Enforcement Office has already issued and withdrawn one violation notice to the owner and tenants of the Property. Fairfax County does not have, nor does it cite in the Violation Notice, the authority to rescind one violation notice and re-issue a violation notice, based upon the same facts, after a violation notice has been issued.

In particular, in the context of zoning violations, the Code of Virginia limits the zoning administrator's authority to "ordering in writing the remedying of any condition found in violation of the [zoning] ordinance." It does not authorize the zoning administrator to issue an order, rescind the order, and then re-issue the order. This limitation makes sense; it is costly for a recipient of a violation notice ("Recipient- ) to appeal consecutive and redundant zoning violation notices. And there must be a line that protects Recipients from an indefinite number of rescissions and re-issuances. Could a notice be rescinded and re-issued twice? Three times? Ten times? There must be a line, and by not giving the zoning administrator the right to rescind and re-issue notices, the General Assembly has drawn that line. A Recipient should only be subject to one violation notice per alleged violation.

The practice of the County lately has been to issue a violation notice and after the Recipient files an appeal, the County does additional research based upon the appeal. Often the County then rescinds the violation notice and issues a new one based upon what it has learned from the appeals filed by the Recipient and of other information

6045 Wilson Boulevard • Suite 100 • Arlington • Virginia 22205 P: (703) 534-4800 • F: (703) 534-8225 • WHawsonLaw.com

gathered should the Recipient work with the County in an attempt to resolve the violation notice. In effect, the County has availed itself of a "non suit" without any legal authority. This is unfair to the Recipient and causes the Recipient to prematurely reveal their defense against the changes and causes the expenditure of additional resources (including monetary) to defend itself. In this case, the County viewed the information supplied by the tenant to change their determination that the use is a "fast food establishment" and not "eating establishment." This matters because a fast food establishment requires a Special Exception.

With regards to the merits, the prior tenant using the space was Moorenko's Ice Cream Café ("Moorenko's"). Moorenko's business was classified as a - Retail Sales Establishment." Moorenko's had approximately 40 seats in the lobby area. See the attached Non-Rup for Moorenko's. (Please note that the County records in the street files located in the Zoning Department in some instances have incorrect addresses and Tax Identification Numbers for this site and other nearby sites.)

In 2009, the Tenant took over the space and did not make changes to the inside of the facility. When the various permits were secured for this establishment, the Tenant explained to the governmental officials their intended use. See the permit attached hereto. The Zoning Department personnel considered the business use to be the same as Moorenko's. See the Non-Rup for the Tenant that states the business is a "Retail Sales Establishment" and notes that it is "take over as is new tenant." The Non-Rup for Tenant is attached hereto.

Over the years the Tenant added seats due to the increase in business. Inside the establishment, the Tenant has added about 8 seats. Most of the additional seats are outside in the patio area and are seasonal in nature. Those seats are removed from the site and stored during the colder months.

The controlling law is found in Virginia Code Section 15.2-2311(c) which reads:

In no event shall a written order, requirement, decision or determination

made by the zoning administrator or other administrative officer be

subject to change, modification or reversal by any zoning administrator or

other administrative officer after 60 days have elapsed from the date of the

written order, requirement, decision or determination where the person

aggrieved has materially changed his position in good faith reliance on

the action of the zoning administrator or other administrative officer

unless it is proven that such written order, requirement, decision or

determination was obtained through malfeasance of the zoning

administrator or other administrative officer or through fraud. The 60-

day limitation period shall not apply in any case where, with the

concurrence of the attorney for the governing body, modification is

required to correct clerical errors.

2

The Tenant respectfully submits that this Code section was passed by the General Assembly precisely for situations such as Tenant's. The Tenant meets all of the requirements to receive the protection of this Code section.

• The written decision was the issuance of the Non-Rup • More than 60 days have elapsed, in fact it is over 6 years. • The Tenant relied on the determination and materially changed its position

by opening the business, paying rent, and using it for 6 years. • There is no evidence of any malfeasance by the Zoning personnel. They

listened to the explanation of what the Tenant was going to do with the business, and concluded it was similar to the prior tenant. The Zoning personnel concluded that the use was Retail Sales Establishment and a take over as a new tenant.

• There is no evidence of fraud by the Tenant.

For these reasons, the Tenant respectfully submits that the Notice should be reviewed by the Board of Zoning Appeals and dismissed.

The Tenant reserves the right to submit supplemental information as it becomes available. The Tenant also states that it will attempt to resolve the Notice outside of the Appeal process, if possible.

///2//5___ D te William B. Lawson, J

Counsel for Tenant

3

County of Fairfax, Virginia To protect and enrich the quality of life for the people, neighborhoods and diverse communities of Fairfax County.

NOTICE OF VIOLATION Fairfax County Zoning Ordinance

DATE OF ISSUANCE: September 15, 2015

METHOD OF SERVICE: OFFICE OF THE SHERIFF

LEGAL NOTICE ISSUED TO: Sweet Leaf Inc. (Tenant) do Shifteh Matini, Registered Agent

ADDRESS: 1359 Chain Bridge Road Mclean, VA 22101-3903

LOCATION OF VIOLATION: 1359 Chain Bridge Road (Sweetleaf) Mclean, VA 22101-3903

TAX MAP REF: 0302 12 0004E1 ZONING DISTRICT: C- 6, SC, CRD

CASE #: 201504935 SR #: 119230

ISSUING INVESTIGATOR: W. B. Moncure, (703)324-1335

POTENTIAL CIVIL

PENALTIES UNDER

ZONING ORDINANCE

§ 18-903(1): Zoning Violation §18-701

First Offense $ 200.00

Each Subsequent Offense $ 500.00

TOTAL: $ 200.00 $ 500.00

Dear Responsible Party:

This letter rescinds the Notice of Violation dated August 3, 2015 and is to reissue a Notice of Violation based on an inspection of the above referenced property on August 03, 2015 for the following violation of the Fairfax County Zoning Ordinance:

§ 18-701 Non Residential Use Permit:

It has been determined that Sweet Leaf, which is a fast food establishment, is occupying the above

Department of Code Compliance 12055 Government Center Parkway, Suite 1016

Fairfax, Virginia 22035-5508 Phone 703-324-1300 Fax 703-653-9459 TTY 711

www.fairfaxcounty.govicode

Sweet Leaf Inc. (Tenant) c/o Shifteh Matini, Registered Agent September 15, 2015 SR 119230 Page 2

referenced property with a Non-Residential Use Permit (Non-RUP) # 90890071 issued March 30, 2009 in the C-6 district for the purpose of a retail sales establishment. Sweet Leaf is operating as a fast food establishment with food sales and catering. A fast food establishment is defined in Article 20 of the ordinance which states:

FAST FOOD RESTAURANT: Any establishment, which provides as a principal use, the sale of food, frozen desserts, or beverages in ready-to-consume state for consumption either within the restaurant, within a motor vehicle parked on the premises, or off-premises, and whose design or principal method of operation included one or more of the following characteristics: 1.Food, frozen desserts, or beverages are served in edible containers or in paper, plastic or other disposable containers. Eating utensils, if provided, are disposable.

2.Food, frozen desserts, or beverages are usually served over a general service counter for the customer to early to a seating facility within the restaurant, to a motor vehicle or off-premises. If consumed on premises, customers generally are expected to clear their own tables and dispose of their trash.

3.Forty-five (45) percent or more of the gross floor area of the establishment is devoted to food preparation, storage and related activities which space is not accessible to the general public.

4.Food, frozen desserts, or beverages are served to the occupants of motor vehicles while seated therein, such as through a drive-in window.

For the purposes of this Ordinance, a fast food restaurant shall not be deemed an eating establishment. A FOOD TRUCK that does not comply with the provisions set forth in Sect. 2-510 shall be deemed a fast food restaurant.

Therefore, you are in violation of Sect. 18-701 of the Fairfax County Zoning Ordinance which states:

No occupancy or use shall be made of any structure hereinafter erected or of any premises hereinafter improved, and no change in use shall be permitted, unless and until a Residential or Non-Residential Use Permit has been approved in accordance with the provisions of this Part. A Residential or Non-Residential Use Permit shall be deemed to authorize and is required for both the initial and continued occupancy and use of the building or land to

Rev. 71114

Sweet Leaf Inc. (Tenant) do Shifteh Matini, Registered Agent September 15, 2015 SR 119230 Page 3

which it applies.

If a Special Permit or Special Exception is required:

2-303 Special Permit Uses

1.No use of a structure or land that is designated as a special permit use in any zoning district shall hereafter be established, and no existing use shall hereafter be changed to another use that is designated as a special permit use in such district, unless a special permit has been approved by the BZA and the use has been established in accordance with the provisions of Article 8. 2.No use existing prior to the effective date of this Ordinance which is allowed within a particular zoning district only by special permit by the provisions of this Ordinance, shall be replaced or enlarged except in accordance with the provisions of Sect. 15-101. 3.No special permit shall be required for a use that is listed as a permitted use in a district, notwithstanding that such use may also be included in a use group available by special permit. Provided, however, that if there is an existing and currently valid special permit for a use located on a lot which is zoned to more than one zoning district and there is an amendment to this Ordinance after the approval of the special permit which allows the use as a permitted use in one of the zoning districts in which the use is located while the requirement for a special permit continues in the other zoning district(s) in which the use is located, the special permit shall remain in full force and effect for the entire property, unless the BZA approves an amendment application to remove the land area from the special permit approval.

2-304 Special Exception Uses

1.No use of a structure or land that is designated as a special exception use in any zoning district shall hereafter be established, and no existing use shall hereafter be changed to another use that is designated as a special exception use in such district, unless a special exception has been approved by the Board and the use has been established in accordance with the provisions of Article 9. 2.No use existing prior to the effective date of this Ordinance which is allowed within a particular zoning district only by special exception by the provisions of this Ordinance, shall be replaced or enlarged except in accordance with the provisions of Sect. 15-101. 3.No special exception shall be required for a use that is listed as a permitted use in a district, notwithstanding that such use may also be included in a use category available by special exception. Provided, however, that if there is an existing and currently valid special exception for a use located on a lot which is zoned to more than one zoning district and there is an amendment to this Ordinance after the approval of the special exception which allows the use as a permitted use in one of the zoning districts in which the use is located while the requirement for a special exception continues in the other zoning district(s) in which the use is located, the special exception shall remain in full force and effect for the entire property, unless the Board approves an amendment application to remove the land area from the special exception approval.

Rev. 7111114


You are hereby directed to clear this violation within thirty (30) days of the date of this Notice. Compliance can be accomplished by either:

• Vacating the premises, or; • Obtaining the required Non-RUP. When filing an applicationlbr the permit, bring this Notice

with you.

*Obtaining a Non-RUP may require site plan approval, a building permit, and/or a submission of a parking tabulation.

Resources: • Building Permit Information (DPWES):

o Customer Technical Support Center, 12055 Government Center Pkwy, 2nd floor o 703-222-0801 o http://www.fairfaxeounty.gov/dpwes/buildingpermits/

• Non-Residential Use Permit (Zoning): o Zoning Permit Review Branch, 12055 Government Center Pkwy, 2"d floor o 703-222-1082 o http://www.fairfaxcounty.gov/dpz/zoning/non-rup.htm

• Site Plan & Parking Tabulation Information (DPWES): o Site Review & Inspections, 12055 Government Center Pkwy, 5th floor o 703-324-1720 o http://www.fairfaxcounty.gov/dpwes/sitedevelopment/

• Special Exceptions and Special Permits (Zoning) o Zoning Evaluation Division, 12055 Government Center Pkwy, 8th floor o 703-324-1290 o http://www.fairfaxcounty.gov/dpz/dpzdivisions/zed.htm

A follow-up inspection will be made at the expiration of the time period outlined in this Notice. Failure to comply with the notice will result in the initiation of appropriate legal action to gain compliance with the Zoning Ordinance which can result in court ordered sanctions or civil penalties. Civil penalties may be ordered in the amount of $200.00 for each violation of the Zoning Ordinance cited herein for the first violation and $500.00 for each violation of the Zoning ordinance cited herein for any subsequent violation, in accordance with Zoning Ordinance §18-903(1).

You may have the right to appeal this Notice of Zoning Violation within thirty (30) days of the date of this letter in accordance with Sec. 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable if it is not appealed within such thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance

Rev. 711/14


with Part 3 of Article 18 of the Fairfax County Zoning Ordinance. Those provisions require the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information that you may wish to submit and a $600.00 filing fee. Once an appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. For information regarding an appeal contact:

Zoning Administration Division 12055 Government Center Parkway, Suite 807 Fairfax, Virginia 22035 Office: (703)324-1314 Information and forms can also be obtained at http://www.fairfaxcounty.gov/dpz/bza/appeals/.

If you have questions, would like to schedule an appointment to meet with an investigator, or schedule a follow up inspection, please contact me directly at (703)324-1335. For any other questions, contact our main office at (703)324-1300.

LEGAL NOTICE ISSUED BY:

Signature

W. B. Moncure Code Compliance Investigator (703)324-1335 [email protected]

Rev. 711 1 /14


a PERSONAL SERVICE a Being unable to make personal service a copy was

delivered in the following manner: c Delivered to a person found in charge of usual place

of business or employment during business hours and giving information of its purport.

a Delivered to family member (not temporary sojourner or guest) age 16 or older at usual place of abode or party named above after giving information its purport. List name, age of recipient. and relation of recipient to party named above.

a Posted On front door or such other door as appears to be the main entrance of usual place of abode. address listed above (Other authorized recipient not found).

a Served on a Secretary of the Commonwealth. a Not found.

SERVING OFFICER for

DATE

PERSONAL SERVICE c Being unable to make personal service a copy was

delivered in the following manner: a Delivered to a person found in charge of usual place


a Delivered to family member (not temporary sojourner or guest) age 16 or older at usual place of abode or party named above after giving information its purport. List name. age of recipient. and relation of recipient to party named above.

a Posted on front door or such other door as appears to be the main entrance of usual place of abode, address listed above (Other authorized recipient not found).


SERVING OFFICER for

DATE

a PERSONAL SERVICE a Being unable to make personal service a copy was

delivered in the following manner: a Delivered to a person found 111 charge of usual place


c Delivered to Emily member (not temporary sojourner or guest) age 16 or older at usual place of abode or party named above after giving information its purport. List name, age of recipient. and relation of recipient to parry named above.

a Posted on front door or such other door as appears to be the main entrance of usual place of abode. address listed above (Other authorized recipient not found).


SERVLNG OFFICER for

DATE

a PERSONAL SERVICE c Being unable to make personal service a copy was

delivered in the following manner: c Delivered to a person found in charge of usual place


c Delivered to family member (not temporary sojourner or guest) age 16 or older at usual place of abode or party named above after giving information its purport. List name, age of recipient. and relation of recipient to party named above.

a Posted on front door or such other door as appears to be the main entrance of usual place of abode, address listed above (Other authorized recipient not found).


SERVING OFFICER for

DATE

Rev. 711 1/14

Print Form

Please type or Print in Black Ink

COMMONWEALTH OF VIRGINIA COUNTY OF FAIRFAX

APPLICATION FOR APPEAL

FAIRFAX COUNTY RECEIVED

OCT 1 4 2015

APPLICATION NO.

DIVISION OF ZONING ADMINISTRATION

(Assigned by Staff)

NAME OF APPELLANT: Juliano Properties, Inc.

NATURE OF THE APPEAL: Appeal Notice of Violation. Juliano Properties, Inc. disputes the allegations and conclusions contained in the Notice of Violation.

DATE OF ORDER, REQUIREMENT, DECISION, DETERMINATION OR NOTICE OF VIOLATION WHICH IS SUBJECT TO THE APPEAL9-15-2015

HOW IS THE APPELLANT AN AGGRIEVED PERSON?: See attached Statement of Support

IF APPEAL RELATES TO A SPECIFIC PROPERTY, PROVIDE THE FOLLOWING INFORMATION:

POSTAL ADDRESS OF PROPERTY:1359 Chain Bridge Road, McLean, VA 22101

/ TAX M p PRIPTION: 30-2 120004E1

/ / George/ A/H vykins, Esq., agent for Juliano Properties, Inc.

Type Or game of Appellant or Agent

Sigrajj44 oyAppellant or Agent

8300 Boone Boulevard, #550, Vienna, VA 22182 Address

703-777-7319 Telephone No: Home Work Cell

Please type or print name, address, and phone number of contact person If different from above:

DO NOT WRITE IN THIS SPACE

Subdivision Name: - --)"-t..--(- Vi If al C-- j I t / -/- . /-1 r 1 <.-- - .-: , — ( - - c _

Total Area (Acres/Square Feet): I / :3 2-F) -cqele, • {-1— , ; Present Zoning: (I- u; C C., Ci i _ fc? -,

Supervisor District: . 1

L

Date application received: /07/1/ if 6 Application Fee Paid: $

Date application accepted: /' //t //'3

8/2013

STATEMENT OF SUPPORT

Please consider this to be the Statement of Support for the appeal filed by Juliano Properties, Inc. ("Landlord") to the Notice of Violation ("Notice") dated September 15, 2015.

The undersigned represents the Landlord. The Landlord is aggrieved because the Notice, if not reversed, declares the Landlord in violation of §18-701 of the Fairfax County Zoning Ordinance (the "Ordinance"), and seeks to impose financial penalties on the Landlord.

Moreover, the Landlord is aggrieved because the Notice, unless reversed, prevents the continued business operation conducted at the property and could require the vacation of the premises by the tenant, Sweet Leaf, Inc. ("Tenant"), depriving the Landlord of the financial benefits negotiated with the Tenant. Additionally, if the Tenant is required to file for a new Non-Rup and/or Special Exception as suggested in the Notice, there could be a significant cost associated with processing the Non-Rup/Special Exception, and the Tenant may have to reduce the number of seats, and thus need a reduction in rent. In addition, the Special Exception may not be granted.

In support of the appeal, the Landlord submits the following:

I. The Landlord cannot be held in violation of the Ordinance

The Landlord respectfully submits that one cannot be guilty of a zoning violation for "allowing" someone else to violate the Ordinance. Either the Landlord is in violation of the zoning ordinance or it is not. The applicable Ordinance is §18-901(2), which states:

Any person, whether owner, lessee, principal, agent, employee or otherwise, who violates any of the provisions of this Ordinance, or permits any such violation, or fails to comply with any of the requirements hereof, or who erects any building or uses any building or land in violation of the provisions of this Ordinance shall be subject to the enforcement provisions of this Part.

It is clear that the Landlord has not violated the Ordinance and no facts contained in the Notice demonstrate that the Landlord has permitted the alleged Tenant violation. If the Tenant is in violation of the Ordinance, then the County has accurately served the Tenant with a zoning violation notice. Further, Ordinance §18-701 begins "No occupancy or use shall be made ...". Thus, §18-701 does not prohibit the "allowing" of an occupancy or use. Therefore, the violation notice should be dismissed because the violation notice on its face indicates that Landlord has not violated the zoning ordinance.

In summary, the Notice issued to the Landlord states that the Tenant is operating in violation of the Ordinance. It then orders the Landlord to cease the activity that the Tenant is conducting. How can the Landlord possibly comply with that demand?

2. The Notice is without Authority and Violates Due Process

The Zoning Enforcement Office has already issued and withdrawn one violation notice to the Landlord and Tenant of the Property. Fairfax County does not have, nor does it cite in the Violation Notice, the authority to rescind one violation notice and re-issue a violation notice, based upon the same facts, after a violation notice has been issued.

In particular, in the context of zoning violations, the Code of Virginia limits the zoning administrator's authority to "ordering in writing the remedying of any condition found in violation of the [zoning] ordinance." It does not authorize the zoning administrator to issue an order, rescind the order, and then re-issue the order. This limitation makes sense; it is costly for a recipient of a violation notice ("Recipient") to appeal consecutive and redundant zoning violation notices. And there must be a line that protects Recipients from an indefinite number of rescissions and re-issuances. Could a notice be rescinded and re-issued twice? Three times? Ten times? There must be a line, and by not giving the zoning administrator the right to rescind and re-issue notices, the General Assembly has drawn that line. A Recipient should only be subject to one violation notice per alleged violation.

There is also a fundamental violation of due process. Fundamental fairness guaranteed by Virginia's and the U.S. Constitution requires regularity in these processes. Instead, the practice of the County lately has been to issue a violation notice and after the Recipient files an appeal, the County gets a second bite at the apple, learning from the appeal and often rescinding its violation notice and issuing a new one based upon what it has learned from the Recipient. Worse, efforts to negotiate an amicable resolution are chilled as information exchanged is used against small business owners seeking an economically viable resolution.

In effect, the County has availed itself of a "nonsuit" without any legal authority. This is unfair to the Recipient and causes the Recipient to prematurely reveal their defense against the changes and causes the expenditure of additional resources (including monetary) to defend itself. In this case, the County viewed the information supplied by the Tenant to change their determination that the use is a "fast food establishment" and not "eating establishment." This matters because a fast food establishment requires a Special Exception.

3. The Notice itself Lacks Merit

With regards to the merits, the Landlord understands that the prior tenant using the space was Moorenko's Ice Cream Cafe ("Moorenko's"). Moorenko's business was classified as a "Retail Sales Establishment." Moorenko's had approximately 40 seats in the lobby area. See the attached Non-Rup for Moorenko's. (Please note that the County records in the street files located in the Zoning Department in some instances have incorrect addresses and Tax Identification Numbers for this site and other nearby sites.)

Further, the Landlord understands that in 2009, the Tenant took over the space and did not make changes to the inside of the facility. When the various permits were secured for this establishment, the Tenant explained to the governmental officials their intended use. See the

2

permit attached hereto. The Zoning Department personnel considered the business use to be the same as Moorenko's. See the Non- Rup for the Tenant that states the business is a "Retail Sales Establishment" and notes that it is "take over as is new tenant." The Non-Rup for Tenant is attached hereto.

Finally, the Landlord understands that over the years the Tenant added seats due to the increase in business. Inside the establishment, the Tenant has added about 8 seats. Most of the additional seats are outside in the patio area and are seasonal in nature. Those seats are removed from the site and stored during the colder months.

The controlling law is found in Virginia Code Section 15.2-2311(c) which reads:

In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by any zoning administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer or through fraud. The 60-day limitation period shall not apply in any case where, with the concurrence of the attorney for the governing body, modification is required to correct clerical errors.

This Code section was passed by the General Assembly precisely for situations such as this one.

The Tenant meets all of the requirements to receive the protection of this Code section because:

• the written decision was the issuance of the Non-Rup; • more than 60 days have elapsed (in fact it is over 6 years); • the Tenant and Landlord relied on the determination and materially changed its position by opening the business, paying rent, and using it for 6 years. • there is no evidence of any malfeasance by the Zoning personnel. They listened to the explanation of what the Tenant was going to do with the business, and concluded it was similar to the prior tenant. The Zoning personnel concluded that the use was Retail Sales Establishment and a take over as a new tenant. • There is no evidence of fraud by the Tenant.

For these reasons, the Landlord respectfully submits that the Notice should be reviewed by the Board of Zoning Appeals and dismissed.

The Landlord reserves the right to submit supplemental information as it becomes available.

3

The Landlord also states that it will attempt to resolve the Notice outside of the Appeal process, if possible, provided the La drord receives such written assurances that discussions to resolve the matter and any infpfmation obtained during those discussions will be kept confidential and not used against t andl fd or Tenant.

Dat Go1e riawkins, counsel to Landlord

4

County of Fairfax, Virginia To protect and enrich the quality of life for the people. neighborhoods and diverse communities of Fairfax County.

NOTICE OF VIOLATION

Fairfax County Zoning Ordinance

DATE OF ISSUANCE: September 15, 2015

METHOD OF SERVICE: CERTIFIED MAIL # 7014 3490 0000 5234 3720

LEGAL NOTICE ISSUED TO: Juliano Properties Inc (Property Owner) do Dunlap Bennett & Ludwig PLLC, Registered Agent

ADDRESS: 211 Church Street SE Leesburg, VA 20175

LOCATION OF VIOLATION: 1359 Chain Bridge Road (Sweetleaf) Mclean, VA 22101-3903

TAX MAP REF: 0302 12 0004E1 ZONING DISTRICT: C- 6, SC, CRD

CASE #: 201504935 SR #: 119230

ISSUING INVESTIGATOR: W. B. Moncure, (703)324-1335

POTENTIAL CIVIL

PENALTIES UNDER

ZONING ORDINANCE

§ 18-903(1): Zoning Violation §18-701

First Offense $ 200.00

Each Subsequent Offense $ 500.00

TOTAL: $ 200.00 $ 500.00

Dear Responsible Party:

This letter rescinds the Notice of Violation dated August 3, 2015 and is to reissue a Notice of Violation based on an inspection of the above referenced property on August 03, 2015 for the following violation of the Fairfax County Zoning Ordinance:

§ 18-701 Non Residential Use Permit:

It has been determined that Sweet Leaf, which is a fast food establishment, is occupying the above

Department of Code Compliance

12055 Government Center Parkway, Suite 1016 Fairfax, Virginia 22035-5508

Phone 703-324-1300 Fax 703-653-9459 TTY 711 www.fairfaxcounty.gov/codc

Juliano Properties Inc (Property Owner) c/o Dunlap Bennett & Ludwig PLLC, Registered Agent September 15, 2015 SR 119230 Page 2

referenced property with a Non-Residential Use Permit (Non-RUP) # 90890071 issued March 30, 2009 in the C-6 district for the purpose of a retail sales establishment. Sweet Leaf is operating as a fast food establishment with food sales and catering. A fast food establishment is defined in Article 20 of the ordinance which states:

FAST FOOD RESTAURANT: Any establishment, which provides as a principal use, the sale of food, frozen desserts, or beverages in ready-to-consume state for consumption either within the restaurant, within a motor vehicle parked on the premises, or off-premises, and whose design or principal method of operation included one or more of the following characteristics: 1.Food, frozen desserts, or beverages are served in edible containers or in paper, plastic or other disposable containers. Eating utensils, if provided, are disposable.

2.Food, frozen desserts, or beverages are usually served over a general service counter for the customer to carry to a seating facility within the restaurant, to a motor vehicle or off-premises. If consumed on premises, customers generally are expected to clear their own tables and dispose of their trash.

3.Forty-five (45) percent or more of the gross floor area of the establishment is devoted to food preparation, storage and related activities which space is not accessible to the general public.

4.Food, frozen desserts, or beverages are served to the occupants of motor vehicles while seated therein, such as through a drive-in window.

For the purposes of this Ordinance, a fast food restaurant shall not be deemed an eating establishment. A FOOD TRUCK that does not comply with the provisions set forth in Sect. 2-510 shall be deemed a fast food restaurant.

Therefore, you are in violation of Sect. 18-701 of the Fairfax County Zoning Ordinance which states:

No occupancy or use shall be made of any structure hereinafter erected or of any premises hereinafter improved, and no change in use shall be permitted, unless and until a Residential or Non-Residential Use Permit has been approved in accordance with the provisions of this Part. A Residential or Non-Residential Use Permit shall be deemed to authorize and is required for both the initial and continued occupancy and use of the building or land to

Rev. 7/11/14

• Juliano Properties Inc (Property Owner) c/o Dunlap Bennett & Ludwig PLLC, Registered Agent September 15, 2015 SR 119230 Page 3

which it applies.

If a Special Permit or Special Exception is required:

2-303 Special Permit Uses I. No use of a structure or land that is designated as a special permit use in any zoning district shall hereafter be established, and no existing use shall hereafter be changed to another use that is designated as a special permit use in such district, unless a special permit has been approved by the BZA and the use has been established in accordance with the provisions of Article 8. 2.No use existing prior to the effective date of this Ordinance which is allowed within a particular zoning district only by special permit by the provisions of this Ordinance, shall be replaced or enlarged except in accordance with the provisions of Sect. 15-101. 3.No special permit shall be required for a use that is listed as a permitted use in a district, notwithstanding that such use may also be included in a use group available by special permit. Provided, however, that if there is an existing and currently valid special permit for a use located on a lot which is zoned to more than one zoning district and there is an amendment to this Ordinance after the approval of the special permit which allows the use as a permitted use in one of the zoning districts in which the usc is located while the requirement for a special permit continues in the other zoning district(s) in which the use is located, the special permit shall remain in full force and effect for the entire property, unless the BZA approves an amendment application to remove the land area from the special permit approval.


1. No use of a structure or land that is designated as a special exception use in any zoning district shall hereafter be established, and no existing use shall hereafter be changed to another use that is designated as a special exception use in such district, unless a special exception has been approved by the Board and the use has been established in accordance with the provisions of Article 9. 2.No use existing prior to the effective date of this Ordinance which is allowed within a particular zoning district only by special exception by the provisions of this Ordinance, shall be replaced or enlarged except in accordance with the provisions of Sect. 15-101. 3.No special exception shall be required for a use that is listed as a permitted use in a district, notwithstanding that such use may also be included in a use category available by special exception. Provided, however, that if there is an existing and currently valid special exception for a use located on a lot which is zoned to more than one zoning district and there is an amendment to this Ordinance after the approval of the special exception which allows the use as a permitted use in one of the zoning districts in which the use is located while the requirement for a special exception continues in the other zoning district(s) in which the use is located, the special exception shall remain in full force and effect for the entire property, unless the Board approves an amendment application to remove the land area from the special exception approval.

Rev. 7/11/14

• Juliano Properties Inc (Property Owner) c/o Dunlap Bennett & Ludwig PLLC, Registered Agent September 15, 2015 SR 119230 Page 4

You are hereby directed to clear this violation within thirty (30) days of the date of this Notice. Compliance can be accomplished by either:

• Vacating the premises, or; • Obtaining the required Non-RUP. When filing an application for the permit, bring this Notice

with you.

*Obtaining a Non-RUP may require site plan approval, a building permit, and/or a submission of a parking tabulation.

Resources: • Building Permit Information (DPWES):

o Customer Technical Support Center, 12055 Government Center Pkwy, 2nd floor

o 703-222-0801 o http://www.fairfaxcountv.gov/dpwes/buildingnennits/

• Non-Residential Use Permit (Zoning): o Zoning Permit Review Branch, 12055 Government Center Pkwy, 2" floor o 703-222-1082 o http://www.fairfaxcounty.gov/dpz/zoning/non-rup.htm

• Site Plan & Parking Tabulation Information (DPWES): o Site Review & Inspections, 12055 Government Center Pkwy, 5th floor o 703-324-1720 o http://www.fairfaxcounty.gov/dpwes/sitedevelopment/

• Special Exceptions and Special Permits (Zoning) o Zoning Evaluation Division, 12055 Government Center Pkwy, 8th floor o 703-324-1290 o http://www.fairfaxeounty.gov/dpz/dpzdivisions/zed.htm

A follow-up inspection will be made at the expiration of the time period outlined in this Notice. Failure to comply with the notice will result in the initiation of appropriate legal action to gain compliance with the Zoning Ordinance which can result in court ordered sanctions or civil penalties. Civil penalties may be ordered in the amount of $200.00 for each violation of the Zoning Ordinance cited herein for the first violation and $500.00 for each violation of the Zoning ordinance cited herein for any subsequent violation, in accordance with Zoning Ordinance §18-903(1).

You may have the right to appeal this Notice of Zoning Violation within thirty (30) days of the date of this letter in accordance with Sec. 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable if it is not appealed within such thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance

Rev. 7/1 I /14

Juliano Properties Inc (Property Owner) do Dunlap Bennett & Ludwig PLLC, Registered Agent September 15, 2015 SR 119230 Page 5

with Part 3 of Article 18 of the Fairfax County Zoning Ordinance. Those provisions require the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information that you may wish to submit and a $600.00 filing fee. Once an appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. For information regarding an appeal contact:

Zoning Administration Division 12055 Government Center Parkway, Suite 807 Fairfax, Virginia 22035 Office: (703)324-1314 Information and forms can also be obtained at http://www.fairfaxcounty.gov/dpz/bza/appeals/.

If you have questions, would like to schedule an appointment to meet with an investigator, or schedule a follow up inspection, please contact me directly at (703)324-1335. For any other questions, contact our main office at (703)324-1300.

LEGAJL NOTICE ISSUED BY:

Signature

W. B. Moncure Code Compliance Investigator (703)324-1335 [email protected]

Rev. 7/1 1 /14

ATTACHMENT 2

ZONING ORDINANCE PROVISIONS

PART 3 2-300 INTERPRETATION OF DISTRICT REGULATIONS


1. No use of a structure or land that is designated as a special exception use in any zoning district shall hereafter be established, and no existing use shall hereafter be changed to another use that is designated as a special exception use in such district, unless a special exception has been approved' by the Board and the use has been established in accordance with the provisions of Article 9.

PART 1

11-104

11-100 OFF-STREET PARKING

Minimum Required Spaces for Commercial Uses

8. Restaurant or Restaurant with Drive-through:

A. Restaurant:

(1)Ten (10) spaces per 1000 square feet of gross floor area for restaurants with a gross floor area of less than 5000 square feet

(2)Eleven (11) spaces per 1000 square feet of gross floor area for restaurants with a gross floor area of 5000 square feet or more

(3)Spaces designated for curb-side pickup cannot be counted toward the minimum required number of parking spaces

B. Restaurant with Drive-through:

Twelve (12) spaces per 1000 square feet of gross floor area, plus eleven (11) stacking spaces for the drive-through window, with a minimum of five (5) such spaces designated for the ordering station. Such spaces must be designed so as not to impede pedestrian or vehicular circulation on the site or on any abutting street.

Spaces designated for curb-side pickup cannot be counted toward the minimum required number of parking spaces

PART 7 18-700 RESIDENTIAL AND NON-RESIDENTIAL USE PERMITS

18-701 Permit Required for Occupancy or Use

No occupancy or use shall be made of any structure hereinafter erected or of any premises hereinafter improved, and no change in use shall be permitted, unless and until a Residential or Non-Residential Use Permit has been approved in accordance with the provisions of this Part. A Residential or Non-Residential Use Permit shall be deemed to authorize and is required for both the initial and continued occupancy and use of the building or land to which it applies.

18-706 Permit Not To Validate Any Violation

No Residential or Non-Residential Use Permit shall be deemed to validate any violation of any provision of any law or ordinance.

PART 3 20-300 DEFINITIONS

RESTAURANT: Any establishment that provides, as a principal use, the preparation and sale of food and/or beverages in a ready-to-consume state for consumption on or off the premises. A RESTAURANT WITH DRIVE-THROUGH, CARRYOUT RESTAURANT, QUICKSERVICE FOOD STORE, or CRAFT BEVERAGE PRODUCTION ESTABLISHMENT as defined herein, is not considered a RESTAURANT.

This use does not include a snack bar or refreshment stand at a public or non-private recreational facility that is operated solely by the agency or group operating the recreational facility as an accessory use for the convenience of the patrons of the facility.

Entertainment that is provided for the enjoyment of the patrons is considered accessory to a restaurant. Such entertainment may include dancing by patrons if the space made available for dancing is not more than one-eighth (1/8) of the floor area available for dining. Provisions for dancing made available under this definition are subject to the licensing requirements of Chapter 27 of The Code.

RETAIL SALES ESTABLISHMENT: Any establishment wherein the primary occupation is the sale of merchandise for use or consumption by the immediate purchaser. This term also includes establishments such as television and tool rental establishments, photographic and portrait studios, and small grocery, specialty or gourmet food stores. For the purpose of this Ordinance, however, retail sales establishment does not include AUTOMOBILE-ORIENTED USES, HEAVY EQUIPMENT AND SPECIALIZED VEHICLE, SALE, RENTAL AND SERVICE ESTABLISHMENTS, RETAIL SALES ESTABLISHMENTS-LARGE, QUICK-SERVICE FOOD STORES, VEHICLE LIGHT SERVICE ESTABLISHMENTS, OR VEHICLE SALE, RENTAL AND ANCILLARY SERVICE ESTABLISHMENTS.

NOTE: Occupancy approval subject -to—i-inarihspection by the Fairfax County Fire Marshal's office. Please call 246-4849 to scheduA final occupancy inspection. Minimum Inspection Fee $ Applied to Final Bill Rect#

NRPPOPFO COMMONWEALTH OF VIRGINIA COUNTY OF FAIRFAX

DEPARTMENT OF PLANNING AND ZONING ZONING ADMINISTRATION DIVISION

NON-RESIDENTIAL USE PERMIT

PRINT DATE: 11/08/2002

THIS PERMIT SHALL BE CONSPICUOUSLY POSTED AT ALL TIMES IN THE ESTABLISHMENT

Non-RUP No.: A-2002-1740 Permission is hereby granted to MOORENKO'S ICE CREAM CAFE to use 1,785 square feet of floor area on the floor of the building located at 01359 CHAIN BRIDGE RD also known as Tax Map 030-2- /12/ /0004-,C1- - .- Subdivision ,;,..-1 . IT i :': ' a' • • ,N which property is located in the C-6/W % ,,._,Zoninq for the following purpose: RETAIL ES;STABLISHMENT, ./". ,.,,,,,, ..-,-.

0444. ;:i i1:::.1

This Non-Residential Use Permit/ALx/sued subd& _ o the fo _:, F limitations and conditions: 4 ite,4.a.,...r. .• . ..‘, 1, if.y$ • • Vtbil•

ii I

Al; 1 k J, V:.

t'A,

..i Le • • > ge 7, 07,

\\

/11 1

i 4 i . 1 - i/

‘1, i i/ Use Group of Building: \ TZ-s.' --- . - e .:;1 I ssile /this 08 day7, o N vember , 2002 4. if 11

: '-N.ti(er,, ------- 5.-i- / Type of Construction : ,. 47.'ligi7.-- / o,,----

\\\4,s,,, Building Permit #: 'N. I 771

, Zo,qiihg Administrator APARKE

THIS PERMIT IS FOR USE AND OCCUPANCY ONLY. ANY CHANGE IN THE USE, OCCUPANCY OR PROPRIETORSHIP, OR ENLARGEMENT OR EXPANSION OF THE PREMISES FOR WHICH THIS IS ISSUED SHALL REQUIRE THE APPLICATION AND APPROVAL OF A NEW NON-RESIDENTIAL USE PERMIT.

CINAMOVI

IV

COUNTY OF FAIRFAX Department of Planning and Zoning

Zoning Administration Division NON.RESIDENTIAL USE PERMIT

THIS PERMIT SHALL BE CONSPICUOUSLY POSTED AT ALL TIMES IN THE ESTABLISHMENT

Non-RUP #: 90890071 Issued March 30, 2009

Permission is hereby granted to SVVEETLEAF to use 1,758 square feet of floor area, on Bldg: WA floor: WA Suite #: WA of the building located at: 1359 CHAIN BRIDGE RD MC LEAN VA 22101-3903 Tax Map No;0302 12 0004E1 which property is located in the Zoning District: C-6 for the following purpose: RETAIL SALES ESTABLISHMENT

Must comply with Zoning Case No.: This Non-Residential Use Permit is issued subject to the following limitations and conditions: take over as is new tenant

SIN/M/89

OEEZEGE IEOL

Building Permit No.: N/A Additional Building Permit No.: N/A

Type of Use Construction Group_

N/A NIA /44-40

J1,31133MS

Zoning Administrator

Printed on March 30, 2009 Note: Occupancy approval subject to final inspection by the Fairfax County Fire Marshal's office. Please call 703 246-4849 to schedule final occupancy inspection. This permit does not take the place of any license or other permit required by law. Any. change in the use, occupancy or proprietorship, or any enlargement or ' expansion cif the premises for which this permit is issued shall require the application and approval of a new Non-Residential Use Permit.

ATTACHMENT 4

fairfax board of zoning appeals county · board of zoning appeals public hearing date: march 11,...

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