How Thousands of Fairfax Houses Got Too Tall

In March, the county's planning director, Jim Zook, wrote a confidential memo to his deputies about the case. "An issue I guess that we have avoided but will be unable to do so at the [Board of Zoning Appeals] is other violations in the neighborhood," he wrote, according to documents released under the Freedom of Information Act to another builder who is challenging the county's denial of an occupancy permit on a new house that's too tall. "BZA . . . is highly critical of the administrative error and our review processes (checks/balances). We should alert public affairs."

The county hired surveyors to spot-check 18 houses, including several built by Good Star. Company President Nik Akhtar provided a list of houses he said were also in violation to show how widespread the practice is. They all were too tall.

"I told the county that if they want another 1,000, I can probably do that," Akhtar said.

The building permit issued in 2001 for 6-3170 Ariana Dr. in the Wind Song South development in Oakton, for example, showed a house 32 feet tall; it was built at 37.7 feet. A permit issued in 2004 for 25-1012 Founder's Ridge Ct. in the Garfield Park development in McLean showed the height at 35 feet; the house was built at 41.4 feet.

Jenkins, Johnson and other top zoning and building officials acknowledge that the county has not required builders to show the exact height of their proposed houses, either on architectural drawings or grading plans they submit for construction permits.

The cover sheet on the application asks for a height; they say most builders fill in 35 feet. Then, when the plans are shipped over to the zoning department to be checked for setbacks and other items, they say, reviewers there have assumed the height is 35 feet.

Inspectors make multiple visits during construction -- to check the frame, the foundation and mechanical issues. Once a house is built, they check for working plumbing and electrical systems, fire code compliance and other building issues. A separate site inspection looks at grading and other things.

But never during the process is height measured against what is indicated on the plans, officials say.

The final contact with the county comes within 30 days of occupancy, when a plat -- showing where a house sits on the property and whether it is as far from the road and the neighbors as the plan indicates -- is submitted to the zoning department. It doesn't show height.

"We've focused on safety issues," said James Patteson, chief of land development services. "We weren't putting our scale on there and figuring out the height."

Instead, the county has relied on the industry to interpret a zoning ordinance written in 1978. It says that height must be measured from the curb or ground to the midpoint between the eave and the peak of the roof of houses built with gable, hip or gambrel roofs. County officials said they have always understood that the midpoint must be taken from the highest roofline, although the ordinance does not specify what to do when a house has multiple rooflines. Builders, however, have been averaging the midpoints of houses with several rooflines that reached different heights, resulting in taller houses.

"The county's position is, 'Oh, we missed it, but it's not our job,' " said Wayne Foley, a Great Falls builder who represents custom builders for the Northern Virginia Building Industry Association. "They're saying, 'It's not our job to do your job.' If this height issue is such an egregious issue, then why, in that 10- to 12-week [permitting] process, has somebody not said, 'Whoa, we have a problem here, and we need to change the way we're doing things?' "

Foley estimates that some houses in Great Falls are 60 feet high. The county says that has occurred in part because building and zoning reviewers and inspectors have complicated jobs that require quick action. Almost all new construction in Fairfax is now on infill land with soil and storm water challenges and odd slopes, making permitting more complex and time-consuming, Jenkins said. And inspectors spend more time than they used to traveling to different sites as large subdivisions dwindle.

The county issued 90,848 building permits last year, up from 78,000 in 2003, and performed 256,659 inspections, up from 222,546, budget documents show. Hiring has not kept pace, but the pressure to work faster has increased, Patteson said.

The county issued new measuring rules July 1. Builders now must certify the actual height of a proposed house on site plans and architectural drawings. In some cases, a builder must hire a surveyor to measure a house when it's built. Not everyone will have to do that, however.

"It boils down to dollars" that the builders will have to pay for the survey and might pass on to buyers, Johnson said.

Almost as soon as the violations were discovered last winter, an analyst on Patteson's staff copied for him and other officials an article on Clarksburg Town Center, the Montgomery County community where hundreds of houses violated building and zoning regulations. She circled several paragraphs, including one citing an investigation into a "disintegrating regulatory process" in which departments "failed to communicate" and a culture in which staff and builders worked closely together with little supervision.

Patteson called it an "article of interest" that "focused our attention on some of the problems" other local governments have encountered.