Thousands of Homes May Be Too Tall

Phong Mai and Anh Trinh-Mai can't move into their 7,200-square-foot Oakton house because the roof is too tall.
Phong Mai and Anh Trinh-Mai can't move into their 7,200-square-foot Oakton house because the roof is too tall. (By Jahi Chikwendiu -- The Washington Post)
By Lisa Rein
Washington Post Staff Writer
Sunday, July 30, 2006

Thousands of new and renovated homes in Fairfax County have been built far taller than allowed by law, even though the county issued permits to developers to build the houses at those heights, county and industry officials say.

The discovery of violations that have persisted for years has triggered a confrontation between the county and Northern Virginia's building industry, which says it's not the builders' fault that Fairfax planners and inspectors approved the plans for estates and high-end townhouses.

The dispute has led to a legal challenge from a couple who cannot move into their home because the county denied the occupancy permit. "Until we get this issue resolved, builders can't sell their houses and have people move into them," said Fairfax public works director Jimmie Jenkins. Unresolved is what to do with houses that are too tall but already occupied.

Some county leaders said they are worried that land use in Fairfax could resemble the year-long debacle at Clarksburg Town Center, a community under construction in Montgomery County where hundreds of houses violated building and zoning regulations. The homes were too tall and too close to the street.

A handful of officials resigned as an investigation turned up problems with enforcement and oversight of the project, and the Planning Board chairman decided not to seek a second term. The Clarksburg developer and five builders were fined $2.1 million; the fines were dropped in exchange for about $14 million in community amenities by the developer and builder.

"I would dread for a Clarksburg-type incident to happen here," said Melinda Artman, the zoning administrator in Loudoun, where builders are petitioning the Board of Supervisors to increase the permitted height from 35 to 45 feet.

Fairfax, like most of the region, permits houses no higher than 35 feet. But builders, saying that they are meeting customer demand for big houses with high ceilings, have interpreted those limits more generously when measuring the heights of the pitched roofs popular in today's real estate market. Some of the new houses exceed height limits by 10 feet.

"It's a convoluted mess that needs to be sorted out in some methodical fashion," said Supervisor Joan M. DuBois (R-Dranesville), who estimated that hundreds of homes in her district are too tall, including as many as 40 percent of those in the Reserve, a gated community in McLean. The controversy in Fairfax has prompted Loudoun County officials to review whether that county's new homes are taller than they're supposed to be.

In Oakton, Phong Mai and Anh Trinh-Mai's 7,200-square-foot alabaster-colored estate on 2.1 acres has sat empty since April because the county won't issue their builder an occupancy permit. As county engineers sampled homes under construction to gauge the violations, they discovered that the house's gabled, pitched roofs make it 39 feet tall. The couple filed suit against the Fairfax zoning administrator in Circuit Court last week, saying that they cannot be denied an occupancy permit because their architectural and grading plans sailed through the county planning department last year.

"From our point of view, we submitted a plan, it was approved," said Phong Mai, who owns an information technology business. "We got a permit, and we built to the permit." The couple and their two children are still living in the townhouse in Merrifield they had hoped to sell by now, but the interest rate on their construction loan is edging up because they can't convert it to a mortgage, Mai said.

The Fairfax Board of Supervisors is scheduled to discuss possible remedies for the mistakes in a closed-door session tomorrow. Among the fixes on the table is to force builders to tear off the roofs of some of their homes and make them shorter, a plan that the industry vehemently opposes.

"For those homes that haven't been sold, the homes can be adjusted downward," said Supervisor T. Dana Kauffman (D-Lee), who is concerned that the owners of modest, older homes in his densely built district might be burdened by illegal towering mansions next door. "It's one thing to add a sun roof. It's another to block the sun," Kauffman said. "This can't be all about how do we keep the custom builders happy."

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