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Client Alert: zMOD Proposed Changes to Fairfax County Zoning Ordinance and Potential Effects on Your Community

In 2017, Fairfax County started an initiative known as the Fairfax County Zoning Ordinance Modification Project “zMod”, in an effort to modernize the existing zoning ordinance that was established in 1978. While many of the proposed changes will make the Zoning Ordinance easier to understand and navigate, there are two proposed substantial changes for Accessory Living Units and Home-Based Businesses that may greatly affect community associations across the County. We encourage you to review the summary of proposed Accessory Living Units and Home-Based Businesses changes and the FAQs here.  In this article, we will briefly discuss some of the critical changes.
 
An Accessory Living Unit (formerly known as Accessory Dwelling Unit) is a subordinate housing unit constructed on the same property as the primary residence, either attached or freestanding depending on lot size, which includes areas for eating, sleeping, living and sanitation. Accessory Living Units integrate additional housing options into existing single-family areas to allow flexibility for homeowners and allows renters to live in single family neighborhoods. The proposed zoning ordinance change would allow an administrative permit to be issued for Accessory Living Units that meet all required standards through an administrative process without a public hearing. This streamlined process may encourage homeowners to apply for the permit as the process is now simplified, and neighbors may not be aware of the permit until construction has commenced. The proposed changes also include an option for the Board of Supervisors to consider removing the current requirement that someone on the property be over 55 years of age or have a disability, which would broaden the pool of perspective tenants, further incentivizing homeowners to apply for the permit.
 
Of course, with more residents in a community comes a burden on parking and use of amenities. This could potentially result in increased density and conflicts among neighbors over parking and access. While one of the provisions of zMod is proposed to state, “[i]t is not the intent of this ordinance to interfere with, limit, or invalidate any easements, covenants, or other agreements between parties,”[1] we would advocate for an express acknowledgement on each permit such as the following found in the Short Term Lodging (STL) Permit Application:
             
As for home-based businesses, zMod proposes to ditch the current language regarding prohibited home-based businesses, and instead expressly state permitted uses, which include a number of different potential business operations. Signs advertising the home based-businesses may also be permitted. The amount of customers allowed and onsite employee numbers are subject to change, as well as parking requirements. These changes may bring more non-residents into the communities, placing a burden on parking and other amenities, and generally changing the residential feel of a neighborhood. Of course, community associations’ governing documents may be more restrictive than the ordinance with regard to home-based businesses and signs on properties. If your HOA’s governing documents are silent on the matter, be advised that § 55.1-1821 of the Virginia Property Owners’ Association Act states, “[e]xcept to the extent that the declaration provides otherwise, no association shall prohibit any lot owner from operating a home-based business within his personal residence. The association may, however, establish (i) reasonable restrictions as to the time, place, and manner of the operation of a home-based business and (ii) reasonable restrictions as to the size, place, duration, and manner of the placement or display of any signs on the owner's lot related to such home-based business. Any home-based business shall comply with all applicable local ordinances.”[3]
 
If a Board undertakes to adopt aforesaid restrictions, please do remember that home-based businesses have been the new norm and necessity for many during this COVID-19 pandemic.  Not allowing owners or residents to work from home may not be ideal during this time. Therefore, it is important for community associations to develop regulations for home-based businesses that ensure respect for neighbors and guarantee their rights to enjoy their homes. We also encourage, at the very least, inclusion of the acknowledgement described in the paragraph above in the Fairfax County Home Occupation Permit Application.   

As final note, we anticipate these changes will likely create enforcement problems for communities and Fairfax County. It is likely that the first to notice a violation of the ordinance will be neighbors within the communities, who may then report it to the associations. The associations may then contact the county about the violations, or pursue actions to correct the violations if the specific activity is prohibited by an association’s governing documents.
 
Fairfax County is accepting community feedback prior to adopting the proposed draft. Please note that a Public Hearing before the Planning Commission is scheduled to take place on January 28, 2021.  You can provide your comments by emailing or clicking here to explore options for delivering comments. A Public Hearing before Fairfax County Board of Supervisors is scheduled for March 9, 2021, so it is important to voice your concerns prior to that date. Requests to speak before the Planning Commission must be submitted by 3:00 p.m. on the day of the public hearing by visiting this website. Of course, this article is meant to be informative and does not contain legal advice. If you have questions, please contact legal counsel.