How Thousands of Fairfax Houses Got Too Tall
Officials Cite Different Measuring Methods, Heavy Permit Approval Workload as Partly Responsible

By Lisa Rein
Washington Post Staff Writer
Sunday, August 13, 2006

Fairfax County officials concede that they were caught unprepared when builders put up thousands of houses that are far taller than the law allows.

They say the sheer size and pace of home building in the county prompted them to take the industry's word that it was following the rules -- even as, year after year, builders filed plans for new houses or renovations at the county's maximum height while overall estate sizes were mushrooming.

"The demand of the marketplace went from simple roofs to multi-roofed mansions," Supervisor T. Dana Kauffman (D-Lee) said. "And the county's staff's ability to grasp how to measure didn't keep pace."

County supervisors and top building and zoning officials are loath to blame anyone for the mistakes, which resulted in the Board of Supervisors' decision July 31 to require buyers of new or renovated houses to adjust them to size. In the frenzy to satisfy their customers' preference for steeply pitched, innovative roofs above ceilings reaching 12 feet, builders had one way of measuring a house. The county had another, they say. The methods differed, sometimes by as much as 10 feet.

"I can't give an explanation for it," Supervisor Joan M. DuBois (R-Dranesville) said.

But how the mansions of Washington's largest suburb became taller underscores how powerful builders benefited from a regulatory philosophy based on the reality of local politics. Building and zoning officials say they are under pressure to keep a steady flow of permits for new houses and renovations in the pipeline, and second-guessing every plan was unrealistic.

"We're reviewing hundreds and hundreds of permits every day," Leslie Johnson, the county's senior deputy zoning administrator, said. "When you start questioning what builders are doing, they start getting irritated that we're holding up their permits. If we started to take 30 or 60 or 90 days to review stuff, the industry would go to the [county board] and say we're taking too long."

Added Public Works Director Jimmie Jenkins: "If we checked every little detail, the county government would be 10 times as large." Builders "were certifying that the height was 35 [feet] or less," he said. "We relied on that."

The discovery last year of widespread violations of the 35-foot height limit led to months of tense negotiations with the building industry. Although the supervisors agreed to let out-of-scale houses that are occupied stay as they are, builders are furious that people whose houses are under construction must decide whether to tear down roofs or fill in earth around foundations so they can be given a permit to move in.

"In 20 years, I've never seen the county look at the height of a structure," said Tom Donaldson, president of the Northern Virginia Building Industry Association.

The violations came to light in December, when Supervisor Linda Q. Smyth (D-Providence) received a complaint from a constituent that a house going up on Apple Brook Lane in Oakton was too tall. A surveyor hired by the county measured it at almost 40 feet.

Midway through construction, the buyer wanted a bigger, fancier roof. The builder, Good Star Homes, submitted new plans and got a new permit. But because the zoning department never saw those plans, no one checked whether the new roof would make the house too tall. Good Star is appealing a stop-work order requiring the roof to be lowered, arguing that the county approved the required permits.

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.