By Lisa Rein
Washington Post Staff Writer
Sunday, July 30, 2006; C06
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."
In Fairfax, the excessive heights came to county planners' attention this year when a homeowner complained that the roof of his neighbor's house appeared too tall, said Jenkins, who oversees building permits. A sample inspection of homes under construction found multiple violations, he said, leading him to conclude that the problem is widespread. But he said it would be too expensive to measure the height of every mansion built in the county in recent years.
"We did enough sampling to understand there is a problem," he said, citing "million-plus dollar homes with towering roofs."
"The plans went through showing heights in excess of 35 feet, and they weren't caught," Jenkins added.
He and other officials said there is no way to know precisely how many homes are too tall, but some builders and county supervisors estimated that the figure is in the thousands because of the popularity in recent years of homes with multiple rooflines.
Fines such as those against the Clarksburg builders are not under consideration in Fairfax, several officials said, largely because the violations resulted from a difference of opinion between the county and builders on how to measure the height of a house.
"Nobody was doing anything here with any malice," said Tom Donaldson, a custom builder who is president of the Northern Virginia Building Industry Association. "Our industry does not have an issue with the 35-foot height limit. The difference is the interpretation of how it's calculated."
According to the county's zoning ordinance, height is measured from the curb or ground to the midpoint between the eave and the peak of the roof of a house built with gable, hip and gambrel roofs -- the pitched styles on many area estate homes.
The county says the midpoint must be taken from the highest roofline, although the ordinance does not specify what to do when a house has multiple rooflines.
That's where the industry's interpretation differs. Builders say that for years they have averaged the midpoints of homes with several rooflines that reach different heights. The result is that many houses are higher than 35 feet, in some cases almost a story higher. Additional corners and peaks are aesthetically appealing and add to the cost of labor and materials, which is why they're largely limited to high-end homes.
"Twenty years ago, everybody's dream was brick colonial," said Deborah Brehony of Commonwealth Housing, which built the Mais' manse in Oakton. "Now the pitch of the roof is the aesthetic. If we go back to flat roofs, that's going to stifle the creativity of our homes."
That's true, said county planning and zoning officials, acknowledging that they have not closely monitored compliance with their zoning rules.
For example, Jenkins said that when a house is completed, inspectors check for compliance with fire, electrical and plumbing codes but don't measure its height. "Honestly, I think there was some miscommunication about who was supposed to be doing what," he said.
On July 1, the county issued a directive to local builders to clarify how heights of single-family homes and townhouses should be measured. The notice said that until now, approved permits for new homes and additions have stated only the maximum permitted height, not the actual height, of the planned house. Also, the county has not required architectural drawings to indicate heights, either. Arlington and Loudoun counties require both. Like Arlington, Fairfax is now requiring that a certified surveyor measure the height of a house before an occupancy permit is issued.
The county's problem now is what to do with homes that were built too tall but have been occupied for years, those under construction and those awaiting occupancy permits.
The building industry sent representatives last week to lobby each Fairfax supervisor to plead for leniency on existing homes, asking that they be given an exception from the new rules of measurement. Several members said that the board is divided on whether to do nothing, to require that roofs be lowered or to fill soil in around houses to raise the grade so they conform to zoning law.
"We've not paid attention to it all of these years, and all of these homes are in noncompliance," said Supervisor Elaine N. McConnell (R-Springfield). "But this would be a terrible thing to confront people with at this point."
Kauffman, however, said he's furious at the idea that the mistakes could be allowed to stand.
"I don't have a problem with the height of a home if it's 15 BMW lengths to the next neighbor," he said. "I have a concern when it's a one-third acre lot and it's totally out of keeping with the neighborhood."